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PRESENTED BY 



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FOR AN ELEMENTARY COURSE 



IN 



^oftsiittttiottaf Government? 



TOGETHER WITH THE 



ARTICLES OF CONFEDERATION, and 
CONSTITUTION 0| 'THE UNITED STATES. 

ALSO, SELEpTED PASSAGES RELATING TO SOME POR- 
TIONS of the Bourse. 



{HISTORY 2 IN HARVARD COLL8GJ&.} 



CAMBRIDGE, MASS.: 
W. H. Wheeler, Publisher and Printer. 

18S4. 



• 



■ ; y 



Stjtfci6tis 

FOR AN ELEMENTARY COURSE 

IN 

^oitsttttfiiotiat ^overtittietit t 

TOGETHER WITH THE 

ARTICLES OF CONFEDERATION, and 
CONSTITUTION OF THE UNITED STATES. 

ALSO, SELECTED PASSAGES RELATING TO SOME POR- 
TIONS OF THE COURSE. 



[HIS TORT 2 IN HARVARD COLLEGER 



CAMBRIDGE, MASS. : 
W. H. Wheeler, Publisher and Printer. 

1884. 






ELEMENTARY BOOKS. 



Each member of the class is expected to use either Amos's "Primer of 
the English Constitution" or Fonblanque's "How We are Governed." The 
following works will be found useful for reading and reference : — 

For England : "Central Government," by H. D. Trail [Citizen Series] ; 
The "House of Commons," by R. Palgi-ave, — a description of the life of 
the House; "Handbook of Parliamentary Procedure," by H. W. Lucy; The 
"Electorate and the Legislature," by Spencer Walpole [Citizen Series]; 
Chap. Ill of Freeman's Growth of the English Constitution, also his essay 
on Presidential Government [Historical Essays Vol. I], and hi,s article on 
the Power of Dissolution [N.A. Rev., Aug. '79] ; Gladstone's "Kin Beyond 
Sea"; Bagehot's "English Constitution," — very instructive though wrong 
on some American matters. The "Crown and its Advisers," by A. C. 
Ewald, — useful as a simple statement of the Tory view of the Constitution. 
Whitaker's Almanac is useful for lists of public offices, salaries, members 
of Parliament, the Privy Council, etc., etc. D. B. Eaton's Civil Service in 
Great Britain; A. C. Ewald's "Guide to the Home Civil Service." Larger 
works: Cox's "Institutions of the English Goverment" ; Todd's "Parlia- 
mentary Government"; J. S. Mill's "Representative Government"; 
"Wolsey's Political Science"; "The Cabinet Lawyer"; Escott's "Eng- 
land." 

For the United States : Bancroft's "History of the Formation of the 
Constitution," Vol. 2; McMaster's "History of the People of the United 
States," Vol. 1 ; Hildreth's "History of the United States," Chap, xlvii 
Elliot's "Debates," Vol. I and V; Cooley's "Constitutional Law." 

For France: "L'Organization francaise," by Alphonse Bertrand 
[Paris, A. Quantin] ; "La France," "Le Department" and "La Com- 
mune," by Maurice Block [Paris, Hetzel & Cie.] ; "Le Livre du Petit 

• e GiJ;©^erV' byJulQs.Sirnon [Paris^ Hachette & Cie]. 

V |\^^£Rtef^Y«:;"Tjie GsiJraah Constitution from 1815 to 1871," by A. 
Nicholson; '^KTafeclifs^nusTftfsDeutechen Reiches," by W. Zeller [Leipsic, 

cJe- Je c W^bQi;] :,,' t '§ta < ats,rec ( ht des Deutschen Reiches," by P. Zorn [Berlin, J. 

^wtfenfa'gj;. ';!&«£lbpch; der .P«utschen Verfassungen," by F. Stoerk 

"•[Leip'sTc*, DuhcRef&'H'ilmblot]? ''•** 

W.D.Johnston 



L. 



SYLLABUS. 
THE ENGLISH CONSTITUTION. 

1. General Features of the English Government. A 
monarchy in which the prerogatives of the Crown have 
become subject to the control of Parliament, The Consti- 
tution a growth, rather than a deliberate creation ; for the 
most part unwritten ; influence of custom and of precedent. 

2. Prerogatives of the Crown. "The Queen can do 
no wrong." Ministerial responsibility. All acts of gov- 
ernment must be done through Ministers. The Queen 
has the right to be consulted, the right to encourage, and 
the right to warn. Distinction between prerogative and 
influence. The Queen in legislation. The Royal Speech 
and the Address. The Veto power. The Civil List. 

3. The Cabinet. Its importance. How its members 
are selected. The offices they hold. The Cabinet has no 
legal recognition. The Cabinet and the Ministry. The 
Cabinet and the Privy Council. The Queen in Council. 
"Orders in Council. The Ministry and the Parliament. 
The resignation of a Ministry. 

4. The Prime Minister. Nominally chosen by the 
Queen, but in reality designated by the people. His rela- 
tions with the other ministers. Effect of his resignation. 
The Premiership not an office but a position ; has no legal 
recognition. Compare the English Prime Minister with 
the American President. The Cabinet in each system. 

5. The House of Lords. Lords Spiritual and Tem- 
poral. Representative Peers. Grades of the Peerage. 
Peers by Writ and Peers by Patent. Abeyance of a 
Peerage. Peers of the United Kingdom. Irish Peers. 
Scotch Peers. Law Lords. Lords of Appeal. Peer- 
esses in their own right. Courtesy titles of Peerage. 
The Speaker of the Lords. The Woolsack. Usher of 
the Black Rod. The House of Lords since 1832. A 
^veto of delay." Quorum in the House of Lords. 



SYLLABUS. 



6. (a) House of Commons. Number of Members* 
Quorum. Counting out. County Members and Borough 
Members [Knights and Burgesses]. Representatives of 
the Universities. Peers in the House of Commons. The 
Speaker not a Party leader. The Mace. The Treas- 
ury Bench. The Gangway. The Bar of the House. 
The Cross-benches. The Sergeant at Arms. 

(b) Orders of the Day and Notices of Motion. The 
Order Book. Government Days and Private Members' 
Days. Committee of Supply. "Grievance before Sup- 
ply." The Budget. The Budget Speech. Committee of 
Ways and Means. The Deputy Speaker. The Consol- 
idated Fund. Consolidated Funds. 

(c) Stages in the passage of a bill. The Second read- 
ing. Committee Stage. Report progress. The three 
[six] months' hoist. Freedom of Debate. "Obstruction." 

.Naming a member. The Cloture. Urgency. The "pre- 
vious question" [English and American use]. The new 
Standing Committees. Public and Private Bills. A 
division of the House. The k ' Whips." 

(d) Adjournment ; prorogation ; dissolution. The Sep- 
tennial Act. Writs of Election. The Chiltern Hundreds.' 
Reelection. Nomination Day [old and new]. Contested 
and Uncontested Elections. Controverted Elections [Elec- 
tion Petitions]. Election Judges. Election Expenses. 
Corrupt Practices Acts. Suspension of the Writ. County 
Franchise and Borough Franchise. Freeholders. Forty 
Shilling Freeholders. Fagot Voters. Leaseholders. 
Copyholders. Occupiers. Household Suffrage. Lod- 
ger Franchise. The Ballot Act. "Three-Cornered" Con- 
stituencies. 

7. The principle of unity and cooperation in the Eng- 
lish system. How standing disagreements or deadlocks 
are prevented. The Ministers as intermediaries between 
the two Houses and between the Houses and the Queen. 
How the fact that the ministers are also leaders of Parlia- 
ment gives strength and efficiency both to Parliament and 
the Executive. Compare with the plan of separation of 
powers and mutual check. How the English system pro- 
vides training for high office, and avoids unnecessary 
changes. Smoothness and certainty of change when 
demanded. English Parties: Whig and Tory; Liberal 
and Conservative. The Radicals. Irish Home Rulers. 



SYLLABUS. O 

8. The chief Ministerial Offices. Offices permanently 
in commission [Lord High Treasurer and Lord High 
Admiral]. First Lord. Junior Lords. Ministers with- 
out departmental duties. Permanent Under Secretary. 
Parliamentary Under Secretary. Joint Secretaries to the 
Treasury. Lord Lieutenant of Ireland ; the Chief Secre- 
tary. The Lord Advocate (Scotland). The government 
of the Indian Empire ; Viceroy and Council ; Secretary 
of State and Council. "Responsible Government" in the 
Colonies. 

9. Downing Street. Whitehall. St Stephen's. Court 
of St. James. The Horse Guards. Patronage; Limited 
Competition ; Open Competition ; Superannuation. 

10. The Judicial System. (a) Common Law and 
Equity. Quarter Sessions. County Courts. The Old 
Courts of Common Law [Queen's Bench ; Common Pleas ; 
Exchequer : Exchequer Chamber] . The Twelve [fifteen] 
Judges ; Justices and Barons. Westminster Hall. Cir- 
cuits ; Assizes ; Nisi Prius ; Verdict ; Judgment. Present- 
ment ; Indictment. The Court in banc. The Court of 
Chancery ; Lord High Chancellor ; Master of the Rolls. 
Injunction. Subpoena. Remedial Jurisdiction. House of 
Lords ; Law Lords. 

(b) Consistory Courts; Court of Arches. Writs of 
Prohibition. Admiralty Court. Judicial Committee of 
the Privy Council. 

(c) Inns of Court. Barrister ; Attorney ; Solicitor. 
Proctor. Attorney General. Solicitor General. Queen's 
Counsel. 

(d) The recent reforms of the Judicial System. Fusion 
of Law and Equity. Union of Courts as Divisions of one 
High Court. The new Queen's Bench division. Her 
Majesty's Court of [Intermediate] Appeal. House of 
Lords ; Lords of Appeal. The Lords of Appeal to con- 
stitute the Judicial Committee of the Privy Council. 



UNITED STATES. 



1. Representation in the Congress under the Articles 
of Confederation. Extent and character of the legislative 
power. Provision for raising a revenue, and attempts made 



SYLLABUS. 



to reform it. Executive authority under the Articles, 
Lack of an administrative system. No judicial system. 
State Sovereignty. 

2. The Annapolis Convention. The Federal Conven- 
tion. Virginia Plan and Jersey Plan. General sketch of 
the proceedings of the Convention. Questions found most 
difficult to settle. Chief points in which the Constitu- 
tion as finally adopted differed from the original plan 
reported from Committee of the Whole. Compromises. 

3. Topics and questions relating to the Constitution.* 
(a) The right to vote in the election of Representatives. 

The rule for the apportionment of Representatives before 
and since the adoption of the Slavery Amendments. How 
are vacancies in the Senate and H. of R. filled? What 
authority confers the right to vote in the election of the 
President? The purpose and occasion of the Xllth 
Amendment. The theoretical advantages of Indirect elec- 
tion. Rise of the National Conventions. 

(£) Persons liable to Impeachment. Diminished impor- 
tance of Impeachment in England. Offices to which 
Members of Congress can not be appointed. Grounds of 
the controversy as to powers of taxation conferred on Con- 
gress. Practical working of the clause giving the H. of 
R. the sole right to originate revenue bills. Compare 
our procedure in financial legislation with the English 
method. How may a bill become a law without the Pres- 
ident's approval? Explain " Pocket Veto." Declarations 
of war and treaties of peace, — how made by the United 
States (compare with England, France and Germany). 

(c) State the provisions of the Constitution relating to 
each of the following subjects (also give definitions) : 
Letters of Marque ; attainder ; corruption of blood ; 
treason ; ex -post facto laws ; direct taxes ; bills of credit ; 
legal tender ; reprieves and pardons ; export duties ; right 
of petition ; search warrants ; excessive bail ; habeas 
corpus. In what cases and by whom may the privilege of 
the writ of Habeas Corpus be suspended? 

(d) Traces of Slavery in the Constitution. Fugitives 
from Labor ; the Fugitive Slave Act of 1850. Effect of the 
Slavery Amendments on the Apportionment of Represen- 

* Only the less obvious points are touched upon 



SYLLABUS. 



tatives. Constitutional position of the Indian tribes living 
within the territory of the United States. 

(e) Is the control of the Senate over appointments to be 
regarded as beneficial? The power of Dismissal. The 
amended Tenure of Office act. Appointments which do 
not need the approval of the Senate. Reform of the Civil 
Service. 

(_/") Provisions of the Constitution in reference to Com- 
pensation of Congressmen and salaries of the Judges and 
the President. Arguments for and against a salaried leg- 
islature. Practice of England, France and Germany. 

(g") Diminished importance of safeguards against ex- 
ecutive tyranny in our day. Guarantees for honest and 
efficient administration more needful. These more dif- 
ficult to provide. The English system of staking every- 
thing on the zeal and intelligence of the House of Com- 
mons, — giving it, practically, unlimited powers of inquiry 
and control. Compare with the method of multifarious 
popular elections for fixed terms, independent action, and 
divided responsibility on the part of those elected. Dis- 
trust of legislative bodies observable in recent State 
Constitutions. The adoption of biennial sessions. Re- 
strictions on powers and pay. Effects of the exclusion of 
office holders from the legislature. Lack of responsible 
leadership. Seclusion and silence of the Executive. 

(h) Explain the terms original, appellate, concurrent, 
and exclusive as applied to jurisdiction. Extent of the 
original jurisdiction of the Supreme Court. Effect of the 
Xlth Amendment on the judicial power of the United 
States. Composition and jurisdiction of the Circuit Courts. 
Concurrent jurisdiction of State and United States' Courts. 
Transfer of causes, and appeals, from State Courts to the 
courts of the United States. The right of trial by Jury. 
Appeals from the Circuit Courts to the Supreme Court. 
Need of more speedy decision of appeals. Source of 
the judicial power to declare acts of Congress unconstitu- 
tional and void. Have the English courts this power in 
relation to acts for Parliament? 

(7) The exact provision for amendment of the Constitu- 
tion (Distinguish the two modes.) Compare w r ith Eng- 
land, France, and Germany. 



SYLLABUS. 



FRANCE. 



The President : mode of election ; term of office ; not 
responsible (except for treason). Choice and appoint- 
ment of Ministers ; their individual and collective respon- 
sibility. The Senate: election of Senators; Life Senators 
(1875-1884)., The Chamber of Deputies ; Scrutin d'Ar- 
rondissement and Scrutin de Liste. Power of dissolution. 
National Assembly. Parties in France. Frequency of 
Ministerial changes. Position and rights of ministers 
in the Chambers. 

Le Bureau. Les Bureaux. La Commission d Initiatif. 
Rapporteurs. First and Second Deliberation. Tour 
d* Inscription. La Tribune. La Cloture. Urgence. 
Jgiiestion Pr eatable. Interpellation. Ordre du jour 
motive. La Commission du Budget. , 



GERMANY. 



Federal character of the Imperial Constitution ; its basis 
of treaties. Preponderance of Prussia. The Emperor. 
Nature of the Bundesrath. Composition of the Reichstag, 
Relations between the two bodies. The Prussian Landtag. 
The Three-class system. Weakness of the representative 
bodies in Germany. 



I, 

ARTICLES OF CONFEDERATION 

AND PERPETUAL UNION, BETWEEN THE STATES OF NEW HAMPSHIRE, 
MASSACHUSETTS BAY, RHODE ISLAND AND PROVIDENCE PLAN- 
TATIONS, CONNECTICUT, NEW YORK, NEW JERSEY, PENN- 
SYLVANIA, DELAWARE, MARYLAND, VIRGINIA, NORTH 
CAROLINA, SOUTH CAROLINA, AND GEORGIA. 

ARTICLE I. 

The style of this confederacy shall be, "The United States 
of America." 

article ii. 
Each State retains its sovereignty, freedom, and independence, 
and every power, jurisdiction and right, which is not. by this Con- 
federation, expressly delegated to the United States in Congress 
assembled. 

ARTICLE III. 

The said States hereby severally enter into a firm league of 
friendship with each other, for their common defence, the security 
of their liberties, and their mutual and general welfare ; binding 
themselves to assist each other against all force offered to, or 
attacks made upon, them, or any of them, on account of religion, 
sovereignty, trade, or any other pretence whatever. 

ARTICLE IV. 

The better to secure and perpetuate mutual friendship and inter- 
course among the people of the different States in this Union, the 
free inhabitants of each of these States, paupers, vagabonds, and 
fugitives from justice, excepted, shall be entitled to all privileges 
and immunities of free citizens in the several States ; and the 
people of each State shall have free ingress and regress to and 
from any other State ; and shall enjoy therein all the privileges 
of trade and commerce, subject to the same duties, imposition's, 
and restrictions, as the inhabitants thereof respectively ; provided, 
that such restriction shall not extend so far as to prevent the 
removal of property imported into any State, to any other State 



2 ARTICLES OE CONFEDERATION. 

of which the owner is an inhabitant ; provided also, that no impo- 
sition, duties, or restriction, shall be laid by any State, on the 
property of the United States, or either of them. 

If any person guilty of, or charged with, treason, felony, or 
other high misdemeanor, in an}* State, shall flee from justice, and 
be found in any of the United States, he shall, upon demand of 
the governor or executive power of the State from which he fled, 
be delivered up, and removed to the State having jurisdiction of 
his offence. 

Full faith and credit shall be given in each of these States to 
the records, acts and judicial proceedings, of the courts and mag- 
istrates of every other State. 

ARTICLE V. 

For the more convenient management of the general interests of 
the United States, delegates shall be annually appointed in such 
manner as the legislature of each State shall direct, to meet in 
Congress on the first Monday in November, in every year, with a 
power reserved to each State to recall its delegates, or any of them, 
at an}* time within the year, and send others in their stead, for the 
remainder of the year. 

No State shall be represented in Congress by less than two, nor 
by more than seven, members ; and no person shall be capable of 
being a delegate for more than three years in any term of six 
years ; nor shall any person, being a delegate, be capable of hold- 
ing any office under the United States, for which he, or another for 
his benefit, receives any salary, fees, or emolument of any kind. 

Each State shall maintain its own delegates in a meeting of the 
States, and while they act as members of the committee of the 
States. 

In determining questions in the United States in Congress 
assembled, each State shall have one vote. 

Freedom of speech and debate in Congress shall not be im- 
peached or questioned in any court or place out of Congress ; and 
the members of Congress shall be protected in their persons from 
arrests and imprisonment, during the time of their going to and 
from, and attendance on, Congress, except for treason, felony, or 
breach of the peace. 

ARTICLE VI. 

No State, without the consent of the United States in Congress 
assembled, shall send any embassy to, or receive any embassy 



ARTICLES OF CONFEDERATION. 6 

from, or enter into any conference, agreement, alliance, or treaty, 
with any king, prince, or state ; nor shall any person, holding any 
office of profit, or trust, under the United States, or an}' of them, 
accept of an}' present, emolument, office, or title, of any kind 
whatever, from any king, prince, or foreign state ; nor shall the 
United States in Congress assembled, or any of them, grant any 
title of nobility. 

No two or more States shall enter into any treaty, confederation, 
or alliance whatever, between them, without the consent of the 
United States in Congress assembled, specifying accurately the 
purposes for which the same is to be entered into, and how long it 
shall continue. 

No State shall lay any imposts or duties which may interfere 
with any stipulations in treaties entered into, by the United States 
in Congress assembled, with any king, prince, or state, in pur- 
suance of any treaties, already proposed by Congress to the courts 
of France and Spain. 

No vessels of war shall be kept up, in time of peace, by any 
State, except such number only, as shal be deemed necessary, by 
the United States in Congress assembled, for the defence of such 
State, or its trade ; nor shall any body of forces be kept up by 
any State, in time of peace, except such number only, as in the 
judgment of the United States in Congress assembled, shall be 
deemed requisite to garrison the forts necessary for the defence of 
such State ; but every State shall always keep up a well-regulated 
and disciplined miHtia, sufficiently armed and accoutred ; and shall 
provide and constantly have ready for use, in public stores, a due 
number of field-pieces and tents, and a proper quantity of arms, 
ammunition, and camp equipage. 

No state shall engage in any war, without the consent of the 
United States in Congress assembled, unless such State be actually 
invaded by enemies, or shall have received certain advice of a res- 
olution being formed by some nation of Indians to invade such 
State, and the danger is so imminent as not to admit of a delay, 
till the United States in Congress assembled can be consulted ; nor 
shall any State grant commissions to any ships or vessels of war, 
nor letters of marque or reprisal, except it be after a declaration 
of war by the United States in Congress assembled ; and then only 
against the kingdom or state, and the subjects thereof, against 
which war has been so declared, and under such regulations as 



4 ARTICLES OF CONFEDERATION. 

shall be established by the United States in Congress assembled ; 
unless such State be infested by pirates, in which case vessels of war 
may be fitted out for that occasion, and kept so long as the danger 
shall continue, or until the United States in Congress assembled 
shall determine otherwise. 

ARTICLE VII. 

When land forces are raised by any State for the common de 
fence, all officers of, or under, the rank of colonel, shall be ap- 
pointed by the legislature of each State, respectively, by whom 
such forces shall be raised, or in such manner as such State shall 
direct ; and all vacancies shall be filled up by the State which first 
made the appointment. 

ARTICLE VIII. 

All charges of war, and all other expenses that shall be incurred 
for the common defence, or general welfare, and allowed by the 
United States in Congress assembled, shall be defrayed out of a 
common treasury, which shall be supplied by the several States in 
proportion to the value of all land within each State, granted to, 
or surveyed for, any person, as such land and the buildings and 
improvements thereon shall be estimated, according to such mode 
as the United States in Congress assembled shall, from time to 
time, direct and appoint. The taxes for paying that proportion, 
shall be laid and levied b} T the authority and direction of the legis- 
latures of the several States, within the time agreed upon by the 
United States in Congress assembled. 

ARTICLE IX. 

The United States in Congress assembled, shall have the sole 
and exclusive right and power of determining on peace and war, 
except in the cases mentioned in the sixth article : Of sending 
and receiving ambassadors : Entering into treaties and alliances ; 
provided that no treaty of commerce shall be made, whereby the 
legislative power of the respective States shall be restrained from 
imposing such imposts and duties on foreigners as their own people 
are subjected to, or from prohibiting the exportation or importation 
of any species of goods or commodities whatever : Of establishing 
rules for deciding, in all cases, what captures on land or water 
shall be legal ; and in what manner prizes, taken by land or naval 
forces, in the service of the United States, shall be divided or 



ARTICLES OF CONFEDERATION. 

appropriated : Of granting letters of marque and reprisal in times 
of peace : Appointing courts for the trial of piracies and felonies, 
committed on the high seas ; and establishing courts, for receiving 
and determining, finally, appeals in all cases of captures; provi- 
ded, that no member of Congress shall be appointed a judge of any 
of the said courts. 

The United States in Congress assembled shall also be the last 
resort, on appeal, in all disputes and differences now subsisting, or 
that hereafter may arise, between two or more States, concerning 
boundary, jurisdiction, or any other cause whatever ; which author- 
ity shall always be exercised in the manner following : Whenever 
the legislative or executive authority, or lawful agent, of any State, 
in controversy with another, shall present a petition to Congress, 
stating the matter in question, and praying for a hearing, notice 
thereof shall be given, by order of Congress, to the legislative or 
executive authority of the other State in controversy ; and a da}^ 
assigned for the appearance of the parties by their lawful agents, 
who shall then be directed to appoint, by joint consent, commis- 
sioners or judges, to constitute a court for hearing and determining 
the matter in question : but if they cannot agree, Congress shall 
name three persons, out of each of the United States ; and from 
the list of such persons each party shall alternately strike out one, 
the petitioners beginning, until the number shall be reduced to 
thirteen; and from that number, not less than seven, nor more 
than nine, names, as Congress shall direct, shall, in the presence 
of Congress, be drawn out, by lot ; and the persons whose names 
shall be so drawn, or any five of them, shall be commissioners or 
judges, to hear and finally determine the controversy, so alwa}*s as 
a major part of the judges, who shall hear the cause, shall agree 
in the determination. And if either part}' shall neglect to attend 
at the da} T appointed, without showing reasons which Congress 
shall judge sufficient, or being present shall refuse to strike, the 
Congress shall proceed to nominate three persons out of each 
State ; and the Secretary of Congress shall strike in behalf of 
such party absent or refusing ; and the judgment and sentence of 
the court, to be appointed in the manner before prescribed, shall 
be final and conclusive. And if any of the parties shall refuse to 
submit to the authorit}' of such court, or to appear, or defend their 
claim or cause, the court shall, nevertheless, proceed to pronounce 
sentence or judgment, which shall in like manner be final and 



b ARTICLES OF CONFEDERATION. 

decisive ; the judgment, or sentence, and other proceedings, being, 
in either case, transmitted to Congress, and lodged among the acts 
of Congress, for the security of the parties concerned : Provided, 
that every commissioner, before he sits in judgment, shall take an 
oath, to be administered by one of the judges of the supreme or 
superior court of the State, where the cause shall be tried, 'Well 
and truly to hear and determine the matter in question, according 
to the best of his judgment, without favor, affection, or hope of 
reward': Provided, also, that no State shall be deprived of terri- 
tory for the benefit of the United States, 

All controversies concerning the private right of soil claimed 
under different grants of two or more States, whose jurisdictions, 
as thej' nuvy respect such lauds, and the States which passed such 
grants are adjusted, the said grants or either of them being at the 
same time claimed to have originated antecedent to such settle- 
ment of jurisdiction, shall, on the petition of either party to the 
Congress of the United States, be finally determined, as near as 
may be, in the same manner as is before prescribed for deciding 
disputes respecting territorial jurisdiction between different States. 

The United States, in Congress assembled, shall also have the 
sole and exclusive right and power of regulating the alloy and 
value of coin struck by their own authority, or 03' that of the 
respective States : Fixing the standard of weights and measures 
throughout the United States : Regulating the trade and managing 
all affairs with the Indians, not members of any of the States ; 
provided that the legislative right of ai^ State, within its own 
limits, be not infringed or violated : Establishing and regulating 
post-offices from one State to another, throughout all the United 
States, and exacting such postage on the papers passing through 
the same as may be requisite to defray the expenses of the said 
office : Appointing all officers of the land forces in the service of 
the United States, excepting regimental officers : Appointing all 
the officers of the naval forces, and commissioning all officers 
whatever in the service of the United States : Making rules for the 
government and regulation of the land and naval forces, and 
directing their operations. 

The United States in Congress assembled shall have authority 
to appoint a committee, to sit in the recess of Congress, to be 
denominated A Committee of the States, and to consist of one 
delegate from each State ; and to appoint such other committees 



ARTICLES OF CONFEDERATION. i 

and civil officers as may be necessary for managing the general 
affairs of the United States under their direction : To appoint one 
of their number to preside ; provided, that no person be allowed 
to serve in the office of President more than one year in any term 
of three years. To ascertain the necessary sums of mone}' to be 
raised for the service of the United States, and to appropriate and 
apply the same for defraying the public expenses : To borrow 
money, or emit bills on the credit of the United States, transmit- 
ting every half year to the respective States an account of the 
sums of money so borrowed or emitted : To build and equip a 
navy : To agree upon the number of land forces, and to make 
requisitions from each State for its quota, in proportion to the 
number of white inhabitants in such State, which requisition shall 
be binding ; and thereupon the legislature of each State shall ap- 
point the regimental officers, raise the men, and clothe, arm, and 
equip them, in a soldierlike manner, at the expense of the United 
States ; and the officers and men so clothed, armed, and equipped, 
shall march to the place appointed, and within the time agreed on, 
by the United States in Congress assembled : but if the United 
States in Congress assembled shall, on consideration of circum- 
stances, judge proper that an}' State should not raise men, or 
should raise a smaller number than its quota, and that any other 
State should raise a greater number of men than its quota thereof, 
such extra uumber shall be raised, officered, clothed, armed, and 
equipped, in the same manner as the quota of such State ; unless 
the legislature of such State shall judge that such extra number 
cannot be safely spared out of the same ; in which case they shall 
raise, officer, clothe, arm, and equip, as man}' of such extra num- 
ber as the}' judge can be safely spared ; and the officers and men 
so clothed, armed, and equipped, shall march to the place appoint- 
ed, and within the time agreed on, by the United States in Congress 
assembled. 

The United States in Congress assembled shall never engage in 
a war ; nor grant letters of marque and reprisal in time of peace, 
nor enter into any treaties or alliances, nor coin money, nor regu- 
late the value thereof, nor ascertain the sums and expenses neces- 
sary for the defense and welfare of the United States, or any of 
them, nor emit bills, nor borrow money on the credit of the United 
States, nor appropriate money, nor agree upon the number of ves- 
sels of war to be built or purchased, or the number of land or sea 






8 ARTICLES OF CONFEDERATION. 

forces to be raised, nor appoint a commander-in-chief of the army 
or navy, unless nine States assent to the same ; nor shall a question 
on anj T other point, except for adjourning from day to day, be de- 
termined, unless by the votes of a majority of the United States in 
Congress assembled. 

The Congress of the United States shall have power to adjourn 
to any time within the year, and to any place within the United 
States, so that no period of adjournment be for a longer duration 
than the space of six months, and shall publish the journal of their 
proceedings monthry, except such parts thereof relating to treaties, 
alliances, or military operations as in their judgment require se- 
crecy ; and the yeas and nays of the delegates of each State, on 
any question, shall be entered on the journal, when it is desired 
by any delegate ; and the delegates of a State, or any of them, at 
his or their request, shall be furnished with a transcript of the said 
journal, except such parts as are above excepted, to lay before the 
legislatures of the several States. 

article x. 

The committee of the States, or any nine of them, shall be 
authorized to execute, in the recess of Congress, such of the pow- 
ers of Congress as the United States in Congress assembled, by 
the consent of nine States, shall, from time to time, think expedient 
to vest them with ; provided that no power be delegated to the said 
committee, for the exercise of which, by the Articles of Confed- 
eration, the voice of nine States, in the Congress of the United 
States assembled, is requisite. 

article xi. 

Canada, acceding to this Confederation, and joining in the 
measures of the United States, shall be admitted into and entitled 
to all the advantages of this Union ; but no other colom T shall be 
admitted into the same unless such admission be agreed to by nine 
States. 

' ARTICLE XII. 

All bills of credit emitted, moneys borrowed, and debts con- 
tracted by or under the authority of Congress, before the assem- 
bling of the United States, in pursuance of the present Confedera- 
tion, shall be deemed and considered as a charge against the 



ARTICLES OF CONFEDERATION. 9 

United States, for pa3-ment and satisfaction whereof the said 
United States and the public faith are hereby solemnly pledged. 

ARTICLE XIII. 

Ever}' State shall abide by the determinations of the United 
States in Congress assembled, on all questions which, by this 
Confederation, are submitted to them. And the Articles of this 
Confederation shall be inviolably observed by every State ; and 
the Union shall be perpetual. Nor shall any alteration at any 
time hereafter be made in any of them, unless such alteration be 
agreed to, in a Congress of the United States, and be afterward 
confirmed by the legislatures of every State. 

And whereas, it has pleased the great Governor of ijne world 
to incline the hearts of the legislatures we respectively represent 
in Congress, to approve of, and to authorize us to ratify, the said 
Articles of Confederation and Perpetual Union : 

Know Ye, That we, the undersigned delegates, by virtue of 
the power and authority to us given for that purpose, do, b}~ these 
presents, in the name, and in behalf, of our respective constit- 
uents, fully and entirely ratify and confirm each and every of the 
said Articles of Confederation and Perpetual Union, and all and 
singular the matters and things therein contained. And we do 
further solemnly plight and engage the faith of our respective 
constituents, that they shall abide by the determinations of the 
United States in Congress assembled, on all questions, which, by 
the said Confederation, are submitted to them ; and that the arti- 
cles thereof shall be inviolably observed by the States we respect- 
ively represent ; and that the Union shall be perpetual. 

In witness whereof, we have hereunto set our hands in Congress. 

Done at Philadelphia, in the State of Penns3 r lvania, the ninth 
day of July, in the year of our Lord one thousand seven hundred 
and seventy-eight and in the third year of the Independence of 
America. 



II. 

CONSTITUTION OF THE UNITED STATES 
OF AMERICA. 



We, the People of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquility, pro- 
vide for the common defence, promote the general welfare, and 
secure the blessings of libert}^ to ourselves and our posteritj", do 
ordain and establish this Constitution for the United States of 
America. 

ARTICLE I. 

Section 1. 

• 

i. All Legislative powers herein granted, shall be vested in 
a Congress of the United States, which shall consist of a Senate 
and a House of Representatives. 

Section 2. 

1. The House of Representatives shall be composed of mem- 
bers chosen every second year by the people of the several States, 
and the electors in each State shall have the qualifications requi- 
site for electors of the most numerous branch of the State legis- 
lature. 

2. No person shall be a Representative who shall not have 
attained to the age of twenty-five years, and been seven years a 
citizen of the United States, and who shall not, when elected, be 
an inhabitant of that State in which he shall be chosen. 

3. Representatives and direct taxes shall be apportioned 
among the several States which may be included within this Union, 
according to their respective numbers, which shall be determined 
bj- adding to the whole number of free persons, including those 
bound to service for a term of years, and excluding Indians not 
taxed, three-fifths of all other persons. The actual enumeration 
shall be made within three years after the first meeting of the 
Congress of the United States, and within every subsequent term 
of ten years, in such manner as they shall by law direct. The 
number of Representatives shall not exceed one for every thirty 



CONSTITUTION OF THE UNITED STATES. 11 

thousand, but each State shall have at least one Representative ; 
and until such enumeration shall be made, the State of New 
Hampshire shall be entitled to choose three, Massachusetts eight, 
Rhode Island and Providence Plantations one, Connecticut five, 
New York six, New Jersey four, Pennsylvania eight, Delaware 
one, Maryland six, Virginia ten, North Carolina five, South Caro- 
lina five, and Georgia three. 

4. When vacancies happen in the representation from any 
State, the executive authority thereof shall issue writs of election 
to fill such vacancies. 

5. The House of Representatives shall choose their Speaker 
and other officers ; and shall have the sole power of impeachment. 

Section 3. 

1. The Senate of the United States shall be composed of two 
Senators from each State, chosen by the legislature thereof, for 
six years ; and each Senator shall have one vote. 

2. Immediately after they shall be assembled in consequence 
of the first election, they shall be divided, as equally as may be, 
into three classes. The seats of the Senators of the first class 
shall be vacated at the expiration of the second year ; of the sec- 
ond class, at the expiration of the fourth year ; and of the third 
class, at the expiration of the sixth year ; so that one-third may 
be chosen every second year ; and if vacancies happen by resig- 
nation, or otherwise, during the recess of the legislature of any 
State, the executive thereof ma}' make temporary appointments 
until the next meeting of the legislature, which shall then fill such 
vacancies. 

3. No person shall be a Senator who shall not have attained to 
the age of thirty years, and been nine years a citizen of the 
United States, and who shall not, when elected, be an inhabitant 
of that State for which he shall be chosen. 

4. The Vice-President of the United States shall be President 
of the Senate, but shall have no vote, unless they be equally 
divided. 

5. The Senate shall choose their other officers, and also a Pres- 
ident pro tempore, in the absence of the Vice-President, or when 
he shall exercise the office of President of the United States. 

6. The Senate shall have the sole power to try all impeach- 
ments. When sitting for that purpose, they shall be on oath or 



12 CONSTITUTION OF THE UNITED STATES. 

affirmation. When the President of the United States is tried, 
the Chief Justice shall preside, and no person shall be convicted 
without the concurrence of two-thirds of the members present. 

7. Judgment in cases of impeachment shall not extend further 
than to removal from office, and disqualification to hold and enjoy 
any office of honor, trust, or profit, under the United States ; but 
the part}' convicted shall, nevertheless, be liable and subject to in- 
dictment, trial, judgment, and punishment, according to law. 

Section 4. 

1. The times, places, and manner, of holding elections for 
Senators and Representatives, shall be prescribed in each State 
b}' the legislature thereof ; but the Congress may at any time, by 
law, make or alter such regulations, except as to the places of 
choosing Senators. , 

2. The Congress shall assemble at least once in every year, 
and such meeting shall be on the first Monday in December, un- 
less they shall by law appoint a different clay. 

Section 5. 

1. Each House shall be the judge of the elections, returns, 
and qualifications, of its own members, and a majority of each 
shall constitute a quorum to do business : but a smaller number 
may adjourn from day to day, and ma}' be authorized to compel 
the attendance of absent members, in such manner, and under 
such penalties, as each House may provide. 

2. Each House may determine the rules of its proceedings, 
punish its members for disorderly behavior, and, with the concur- 
rence of two-thirds, expel a member. 

3. Each House shall keep a journal of its proceedings, and, 
from time to time, publish the same, excepting such parts as ma} T 
in their judgment, require secrecy ; and the yeas and nays of the 
members of either House, on any question, shall, at the desire of 
one-fifth of those present, be entered on the journal. 

4. Neither house, during the session of Congress, shall, with- 
out the consent of the other, adjourn for more than three days, 
nor to any other place than that in which the two Houses shall be 
sitting. 

Section 6. 
1. The Senators and Representatives shall receive a compensa- 
tion for their services, to be ascertained by law, and paid out of 



CONSTITUTION OF THE UNITED STATES. 13 

the Treasury of the United States. They shall in all cases, ex- 
cept treason, felony, and breach of the peace, be privileged from 
arrest during their attendance at the session of their respective 
Houses, and in going to, and returning from, the same ; and for 
any speech or debate in either House, they shall not be questioned 
in any other place. 

2. No Senator or Representative shall, during the time for 
which he was elected, be appointed to any civil office under the 
authorit}' of the United States, which shall have been created, or 
the emoluments whereof shall have been increased, during such 
time ; and no person, holding any office under the United States, 
shall be a member of either House during his continuance in 
office. 

Section 7. 

1. All bills for raising revenue shall originate in the House of 
Representatives ; but the Senate may propose or coucur with 
amendments as on other bills. 

2. Every bill which shall have passed tbe House of Represen- 
tatives and the Senate, shall, before it becomes a law, be presented 
to the President of the United States ; if he approve, he shall sign 
it, but if not, he shall return it, with his objections, to that House 
in which it shall have originated, who shall enter the objections at 
large in their Journal, and proceed to reconsider it. If, after such 
reconsideration, two-thirds of that House shall agree to pass the 
bill, it shall be sent, together with the objections, to the other 
House, by which it shall likewise be reconsidered, and if approved 
by two-thirds of that House it shall become a law. But in all such 
cases the votes of both Houses shall be determined by yeas and nays, 
and the names of the persons voting for and against the bill shall be 
entered on the Journal of each House, respectively. If any bill 
shall not be returned bj r the President within ten daj's (Sundays 
excepted) after it shall have been presented to him, the same shall 
be a law, in like manner as if he had signed it, unless the Con- 
gress, by their adjournment, prevent its return, in which case it 
shall not be a law. 

3. Every order, resolution or vote, to which the concurrence 
of the Senate and House of Representatives may be necessary 
(except on a question of adjournment), shall be presented to the 
President of the United States ; and before the same shall take 



14 CONSTITUTION OF THE UNITED STATES, 

effect, shall be approved by him, or being disapproved by him, 
shall be re-passed by two-thirds of the Senate and House of Rep- 
resentatives, according to the rules and limitations prescribed in 
the case of a bill. 

Section 8. 

The Congress shall have power, — 

1. To lay and collect taxes, duties, imposts, and excises, to 
pay the debts, and provide for the common defence and general 
welfare of the United States ; but all duties, imposts, and excises, 
shall be uniform thoughout the United States : 

2. To borrow money on the credit of the United States : 

3. To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes : 

4. To establish a uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies, throughout the United States : 

5. To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures : 

6. To provide for the punishment of counterfeiting the secu- 
rities and current coin of the United States : 

7. To establish post-offices and post-roads : 

8. To promote the progress of science and useful arts, by se- 
curing, for limited times, to authors and inventors, the exclusive 
right to their respective writings and discoveries : 

9. To constitute tribunals inferior to the Supreme Court : 

10. To define and punish piracies and felonies committed on 
the high seas, and offences against the law of nations : 

11. To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water : 

12. To raise and support armies ; but no appropriation of money 
to that use shall be for a longer term than two years : 

13. To provide and maintain a navy : 

14. To make rules for the government and regulation of the 
land and naval forces : 

15. To provide for calling forth the militia to execute the laws 
of the Union, suppress insurrections, and repel invasions : 

16. To provide for organizing, arming, and disciplining, the 
militia, and for governing such part of them as may be employed in 
the service of the United States, reserving to the States, respec- 
tively, the appointment of the officers, and the authority of train- 
ing the militia, according to the discipline prescribed by Congress. 



CONSTITUTION OF THE UNITED STATES. 15 

17. To exercise exclusive legislation, in all cases whatsoever, 
over such district (not exceeding ten miles square) as may, by 
cession of particular States, and the acceptance of Congress 
become the seat of the government of the United States, and to 
exercise like authority over all places, purchased by the consent 
of the legislature of the State in which the same shall be, for the 
erection of forts, magazines, arsenals, dockyards, and other need- 
ful buildings : And, — 

18. To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other powers 
vested by this Constitution in the Government of the United States, 
or in any department or officer thereof. 

Section 9. 

1. The migration or importation of such persons, as any of 
the States, now existing, shall think proper to admit, shall not be 
prohibited by the Congress prior to the year one thousand eight 
hundred and eight ; but a tax or duty ma}" be imposed on such 
importation, not exceeding ten dollars for each person. 

2. The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when, in cases of rebellion or invasion, the public 
safety may require it. 

3. No bill of attainder, or ex post facto law,, shall be passed. 

4. No capitation or other direct tax shall be laid, unless in 
proportion to the census or enumeration hereinbefore directed to 
be taken. 

5. No tax or duty shall be laid on articles exported from any 
State. No preference shall be given by an}* regulation of com- 
merce or revenue, to the ports of one State over those of another, 
nor shall vessels bound to, or from, one State, be obliged to enter, 
clear, or pay duties, in another. 

6. No money shall be drawn from the treasury but in conse- 
quence of appropriations made by law, and a regular statement 
and account of the receipts and expenditures of all public money 
shall be published from time to time. 

7. No title of nobility* shall be granted by the United States ; 
and no person holding any office of profit or trust under them, 
shall, without the consent of the Congress, accept of an}* present, 
emolument, office, or title, of any kind whatever, from any king, 
prince, or foreign state. 



16 constitution of the united states. 

Section 10. 

1. No State shall enter into any treaty, alliance, or confeder- 
ation ; grant letters of marque and reprisal ; coin money ; emit 
bills of credit ; make anything but gold and silver coin a tender 
in payment of debts ; pass any bill of attainder, ex post facto law, 
or law impairing the obligation of contracts, or grant any title of 
nobility. 

2. No State shall, without the consent of the Congress, lay 
any imposts or duties on imports or exports, except what ma} 7 be 
absolutely necessary for executing its inspection laws ; and the 
net produce of all duties and imposts laid by any State on imports 
or exports, shall be for the use of the treasury of the United 
States ; and all such laws shall be subject to the revision and con- 
trol of the Congress. No State shall, without the consent of Con- 
gress, lay an} 7 duty of tonnage, keep troops or ships of wat in 
time of peace, enter into any agreement or compact with another 
State, or with a foreign power, or engage in war, unless actually 
invaded or in such imminent danger as will not admit of delay. 

ARTICLE II. 
Section 1 . 

1. The Executive power shall be vested in a President of the 
United States of America. He shall hold his office during the 
term of four }~ears, and together with the Vice-President, chosen 
for the same term, be elected as follows : — 

2. Each State shall appoint, in such manner as the Legisla- 
ture thereof may direct, a number of Electors, equal to the whole 
number of Senators and Representatives to which the State may 
be entitled in the Congress ; but no Senator or Representative, or 
person holding an office of trust or profit under the United States, 
shall be appointed an Elector. 

Clause 3 has been superseded by the Xllth Article of Ame?idments, 
given under head of Amendments. 

[3. The Electors shall meet in their respective States, and vote 
by ballot for two persons, of whom one, at least, shall not be an 
inhabitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of 
votes for each; which list they shall sign and certify, and trans- 
mit, sealed, to the seat of the government of the United States, 



CONSTITUTION OF THE UNITED STATES. 17 

directed to the President of the Senate. The President of the 
Senate shall, in the presence of the Senate and House of Repre- 
sentatives, open all the certificates, and the votes shall then be 
counted. The person having the greatest number of votes shall 
be the President, if such number be a majority of the whole num- 
ber of Electors appointed ; and if there be more than one who 
have such majority, and have an equal number of votes, then the 
House of Representatives shall immediately choose, by ballot, one 
of them for President ; and if no person have a majorit}", then, 
from the five highest on the list, the said House shall, in like 
manner, choose the President. But in choosing the President, the 
votes shall be taken by States, the Representation from each 
State having one vote ; a quorum for this purpose shall consist 
of a member or members from two-thirds of the States, and a 
majority of all the States shall be necessaiy to a choice. In every 
case, after the choice of the President, the person having the 
greatest number of votes of the Electors shall be the Vice-Presi- 
dent. But if there should remain two or more who have equal 
votes, the Senate shall choose from them, b} r ballot, the Vice- 
President.] 

4. The Congress may determine the time of choosing the 
Electors, and the day on which they shall give their votes ; which 
day shall be the same throughout the United States. 

5. No person, except a natural born citizen, or a citizen of 
the United States at the time of the adoption of this Constitution, 
shall be eligible to the office of President ; neither shall any per- 
son be eligible to that office who shall not have attained to the 
age of thirty-five 3'ears, and been fourteen 3-ears a resident within 
the United States. 

6. In case of the removal of the President from office, or of 
his death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve on the Vice-Presi- 
dent, and the Congress may b} T law provide for the case of re- 
moval, death, resignation, or inability, both of the President and 
Vice-President, declaring what officer shall then act as President, 
and such officer shall act accordingly, until the disabilit} T be re- 
moved, or a President shall be elected. 

7. The President shall, at stated times, receive for his ser- 
vices a compensation, which shall neither be increased nor dimin- 
ished during the period for which he shall have been elected, and 



18 CONSTITUTION OF THE UNITED STATES. 

he shall not receive within that period any other emolument from 
the United States or any of them. 

8. Before he enter on the execution of his office he shall take 
the following oath or affirmation : — 

"I do solemnly swear (or affirm) that I will faithfully 
execute the office of President of the United States, and will, to 
the best of my ability, preserve, protect, and defend, the Consti- 
tution of the United States. 

Section 2. 

1. The President shall be commander-in-chief of the army 
and navy of the United States, and of the militia of the several 
States when called into the actual service of the United States ; 
he may require the opinion, in writing, of the principal officer in 
each of the executive departments, upon any subject relating to 
the duties of their respective offices, and he shall have power to 
grant reprieves and pardons for offences against the United States 
except in cases of impeachment. 

2. He shall have power, by and with the advice and consent 
of the Senate, to make treaties, provided two- thirds of the Sena- 
tors present concur ; and he shall nominate, and by and with the 
advice and consent of the Senate, shall appoint ambassadors, 
other public ministers, and consuls, judges of the Supreme Court, 
and all other officers of* the United States, whose appointments 
are not herein otherwise provided for, and which shall be estab- 
lished by law ; but the Congress may by law vest the appointment 
of such inferior officers, as they think proper, in the President 
alone, in the courts of law, or in the heads of Departments. 

3. The President shall have power to fill up all vacancies that 
may happen, during the recess of the Senate, by granting com- 
missions, which shall expire at the end of their next session. 

Section 3. 
He shall, from time to time, give to the Congress information 
of the state of the Union, and recommend to their consideration 
such measures as he shall judge necessary and expedient ; he may, 
on extraordinary occasions, convene both Houses, or either of 
them, and in case of disagreement between them with respect 
to the time of adjournment, he may adjourn them to such time as 
he shall think proper ; he shall receive ambassadors and other pub- 
lic ministers ; he shall take care that the laws be faithfully exe- 
cuted, and shall commission all the officers of the United States. 



constitution of the united states. 19 

Section 4. 
The President, Vice-President, and all civil officers of the 
United States, shall be removed from office on impeachment for, 
and conviction of, treason, bribery, or other high crimes and 
misdemeanors. 

ARTICLE III. 

Section 1 . 

The Judicial power of the United States shall be vested in one 
Supreme Court, and in such inferior courts as the Congress may, 
from time to time, ordain and establish. The judges, both of the 
Supreme and inferior courts, shall hold their offices during good 
behavior, and shall, at stated times, receive for their services a 
compensation, which shall not be diminished during their con- 
tinuance in office. 

Section 2. 

1. The Judicial power shall extend to all cases, in law and 
equity, arising under this Constitution, the laws of the United 
States, and treaties made, or which shall be made, under their 
authority ; to all cases affecting embassadors, other public minis- 
ters, and consuls ; to all cases of admiralty and maritime jurisdic- 
tion ; to controversies to which the United States shall be a part}' ; 
to controversies between two or more States, between a State and 
citizens of another State, between citizens of different States, 
between citizens of the same State claiming lands under grants 
of different States, and between a State, or the citizens thereof, 
and foreign States, citizens, or subjects. 

2. In all cases affecting embassadors, other public ministers, 
and consuls, and those in which a State shall be a party, the Su- 
preme Court shall have original jurisdiction. In all the other 
cases before mentioned, the Supreme Court shall have appellate 
jurisdiction, both as to law and fact, with such exceptions, and 
under such regulations, as the Congress shall make. 

3. The trial of all crimes, except in cases of impeachment, 
shall be by jury ; and such trial shall be held in the State where 
the said crimes shall have been committed ; but when not commit- 
ted within any State, the trial shall be at such place, or places, as 
the Congress may by law have directed. 



20 constitution of the united states. 

Section 3. 

1. Treason against the United States shall consist only in levy- 
ing war against them, or in adhering to their enemies, giving them 
aid and comfort. No person shall be convicted of treason, unless 
on the testimony of two witnesses to the same overt act, or on 
confession in open court. 

2. The Congress shall have power to declare the punishment 
of treason, but no attainder of treason shall work corruption of 
blood, or forfeiture, except during the life of the person attained. 

ARTICLE IV. 

Section 1. 
Full faith and credit shall be given in each State to the public 
acts, records, and judicial proceedings of every other State. And 
the Congress may, by general laws, prescribe the manner in which 
such acts, records, and proceedings shall be proved, and the effect 
thereof. 

Section 2. 

1. The citizens of each State shall be entitled to all privileges 
and immunities of citizens in the several States. 

2. A person charged in any State with treason, felony, or 
other crime, who shall flee from justice, and be found in another 
State, shall, on demand of the Executive authority of the State 
from which he fled, be delivered up, to be removed to the State 
having jurisdiction of the crime. 

3. No person held to service or labor in one State, under the 
laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or 
labor, but shall be delivered up on claim of the party to whom 
such service or labor ma}' be due. 

Section 3. 
1. New States may be admitted by the Congress into this 
Union ; but no new State shall be formed or erected within the 
jurisdiction of any other State ; nor smy State be formed by the 
junction of two or more States, or parts of States, without the 
consent of the legislatures of the States concerned as well as of 
the Congress. 



CONSTITUTION OF THE UNITED STATES. 21 

2. The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States ; and nothing in this 
Constitution shall be so construed as to prejudice any claims of 
the United States, or of any particular State. 

Section 4. 
The United States shall guaraDtee to every State in this Union 
a republican form of Government, and shall protect each of them 
against invasion ; and, on application of the Legislature, or of 
the Executive (when the Legislature cannot be convened) , against 
domestic violence. 

ARTICLE V. 

The Congress, whenever two-thirds of both Houses shall deem 
it necessaiy, shall propose Amendments to this Constitution, or, 
on the application of the legislatures of two-thirds of the several 
States, shall call a convention for proposing Amendments, which, 
in either case, shall be valid to all intents and purposes as part of 
this Constitution, when ratified by the legislatures of three-fourths 
of the several States, or by conventions in three-fourths thereof, 
as the one or the other mode of ratification may be proposed by 
the Congress : Provided, that no Amendment which may be made 
prior to the ) T ear one thousand eight hundred and eight shall in 
any manner affect the first and fourth clauses in the ninth section 
of the first article ; and that no State, without its consent, shall 
be deprived of its equal suffrage in the Senate. 

ARTICLE VI. 

1. All debts contracted and engagements entered into, before 
the adoption of this Constitution, shall be as valid against the 
United States under this Constitution as under the Confederation. 

2. This Constitution, and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United States, 
shall be the supreme law of the land ; and the judges in every 
State shall be bound thereby, anything in the constitution or laws 
of any State to the contrary notwithstanding. 

3. The Senators and Representatives before mentioned, and 
the members of the several State legislatures, and all executive 



22 AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES. 

and judicial officers, both of the United States and of the several 
States, shall be bound by oath, or affirmation, to support this Con- 
stitution ; but no religious test shall ever be required as a qualifi- 
cation to any office or public trust under the United States. 

ARTICLE VII. 

The ratification of the Convention of nine States shall be suffi- 
cient for the establishment of this Constitution between the States 
so ratifying the same. 



AMENDMENTS TO THE CONSTITUTION. 

ARTICLE I. 

Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof ; or abridging the 
freedom of speech or of the press ; or the right of the people 
peaceably to assemble and to petition the Government for a re- 
dress of grievances. 

ARTICLE II. 

A well regulated militia being necessary to the security of a 
free state, the right of the people to keep and bear arms shall not 
be infringed. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in airy house 
without the consent of the owner ; nor in time of war, but in a 
manner to be prescribed by law. 

ARTICLE IV. 

The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated, and no warrants shall issue but upon proba- 
ble cause, supported by oath or affirmation, and particularly de- 
scribing the place to be searched, and the persons or things to be 
seized. 

ARTICLE V. 

No persons shall be held to answer for a capital or otherwise 
infamous crime, unless on a presentment or indictment of a grand 



AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES. 23 

jury, except in cases arising in the land or naval forces, or in the 
militia when in actual service in time of war or public clanger ; 
nor shall any person be subject for the same offence to be twice 
put in jeopardy of life or limb ; nor shall be compelled in any 
criminal case to be a witness against himself; nor be deprived of 
life, liberty, or property, without due process of law ; nor shall 
private property be taken for public use without just compensation. 

ARTICLE VI. 

In all criminal prosecutions the accused shall enjoy the right 
to a speedy and public trial, by an impartial jur}' of the State and 
district wherein the crime shall have been committed, which dis- 
trict shall have been previously ascertained by law, and to be 
informed of the nature and cause of the accusation ; to be con- 
fronted with the witnesses against him ; to have compulsory 
process for obtaining witnesses in his favor, and to have the assis- 
tance of counsel for his defense. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried b} T a jury shall be otherwise re-examined in any 
Court of the United States than according to the rules of the com- 
mon law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

ARTICLE IX. 

The enumeration in the Constitution of certain rights shall not 
be construed to deny or disparage others retained by the people. 

' ARTICLE X. 

The powers not delegated to the United States by the Constitu- 
tion, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people. 

ARTICLE XI. 

The judicial power of the United States shall not be construed 
to extend to any suit in law or equity commenced or prosecuted 
against one of the United States by citizens of another State, or 
by citizens or subjects of any foreign State. 



24 AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES. 



ARTICLE XII. 

The Electors shall meet in their respective States, and vote by 
ballot for President and Vice-President, one of whom, at least, 
shall not be an inhabitant of the same State with themselves; 
they shall name in their ballots the person voted for as President, 
and in distinct ballots the person voted for as Vice-President, and 
they shall make distinct lists of all persons voted for as President, 
and of all persons voted for as Vice-President, and of the number 
of votes for each, which lists they shall sign and certify, and 
transmit sealed to the seat of the government of the United States 
directed to the President of the Senate. The President of the 
Senate shall, in the presence of the Senate and House of Repre- 
sentatives, open all the certificates, and the votes shall then be 
counted ; the person having the greatest number of votes for 
President shall be the President, if such number be a majority of 
the whole number of electors appointed ; and if no person have 
such majority, then from the persons having the highest numbers, 
not exceeding three, on the list of those voted for as President, 
the House of Representatives shall choose immediately, by ballot, 
the President. But in choosing the President, the votes shall be 
taken by States, the representation from each State having one 
vote ; a quorum for this purpose shall consist of a member or 
members from two-thirds of the States, and a majority of all the 
States shall be necessary to a choice. And if the House of Repre- 
sentatives shall not choose a President, whenever the right of 
choice shall devolve upon them, before the fourth day of March 
next following, then the Vice-President shall act as President, as 
in the case of the death or other constitutional disability of the 
President.- The person having the greatest number of votes as 
Vice-President shall be the Vice-President, if such number be a 
majority of the whole number of electors appointed, and if no 
person have a majority, then from the two highest numbers on the 
list the Senate shall choose the Vice-President ; a quorum for the 
purpose shall consist of two-thirds of the whole number of Sena- 
tors, and a majority of the whole number shall be necessary to a 
choice. But no person constitutionally ineligible to the office of 
President shall be eligible to that of Vice-President of the United 
States. 



AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES. 25 
ARTICLE XIII. 

1. Neither slavery nor involuntary servitude, except as a 
punishment for crime, whereof the party shall have been duly con- 
victed, shall exist within the United States, or any place subject 
to their jurisdiction. 

2. The Congress shall have power to enforce this article by appro- 
priate legislation. 

ARTICLE XIV. 

1. All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United States 
and of the State wherein they reside. No State shall make or en- 
force any law which shall abridge the privileges or immunities of 
citizens of the United States ; nor shall any State deprive any per- 
son of life, liberty, or property, without due process of law, nor 
deny to any person within its jurisdiction the equal protection of 
the laws. 

2. Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number 
of persons in each State, excluding Indians not taxed. But 
when the right to vote at any election for the choice of electors 
for President and Vice-President of the United States, Representa- 
tives in the Congress, the Executive and Judicial officers of a State, 
or the members of the Legislature thereof, is denied to any of the 
male inhabitants of such State, being twenty-one years of age 
and citizens of the United States, or in any way abridged, except 
for participation in rebellion or other crime, the basis of represen- 
tation therein shall be reduced in the proportion which the number 
of such male citizens shall bear to the whole number of male citi- 
zens twenty-one years of age in such State. 

4. No person shall be a Senator or Representative in the Con- 
gress, or Elector of President and Vice-President, or hold any office, 
civil or military, under the United States, or under any State, who, 
having previously taken an oath, as a member of the Congress, or 
as an officer of the United States, or as a member of any State leg- 
islature, or as an executive or judicial officer of any State, to sup- 
port the Constitution of the United States, shall have engaged in 
insurrection or rebellion against the same or given aid or comfort 
to the enemies thereof. But the Congress may, by a vote of two- 
thirds of each House, remove such disability. 



26 AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES. 

4. The validity of the public debt of the United States, author- 
ized by law, including debts incurred for payment of pensions and 
bounties for services in suppressing insurrection or rebellion, shall 
not be questioned. But neither the United States nor any State 
shall assume or pay any debt or obligation incurred in aid of 
insurrection or rebellion against the United States, or any claim 
for the loss or emancipation of any slave ; but all such debts, 
obligations, and claims shall be held illegal and void. 

5. The Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article. 

ARTICLE XV. 

1 . The right of citizens of the United States to vote shall not 
be denied or abridged by the United States, or by any State, on 
account of race, color, or previous condition of servitude. 

3. The Congress shall have power to enforce this article by 
appropriate legislation. 



III. 

KIN BEYOND SEA: 

A COMPARISON OF THE ENGLISH AND AMERICAN 
CONSTITUTIONS BY W. E. GLADSTONE. 



[From the North American Review, Sept. 1878.] 

1. It is now nearly half a centuiT since the works of De 
Tocqueville and De Beaumont, founded upon personal observation, 
brought the institutions of the United States effectually within 
the circle of European thought and interest. They were co-oper- 
ators, but not upon an equal scale. De Beaumont belongs to the 
class of ordinar} T , though able, writers : De Tocqueville was the 
Burke of his age, and his treatise upon America ma}' well be 
regarded as among the best books hitherto produced for the polit- 
ical student of all times and countries. 

2. But higher and deeper than the concern of the old world at 
large in the thirteen colonies, now grown into thirty-eight States, 
besides eight Territories, is the special interest -of England in 
their condition and prospects. 

I do 'not speak of political controversies between them and us, 
which are happil}', as I trust, at an end. I do not speak of the 
vast contribution, which, from year to year, through the opera- 
tions of a colossal trade, each makes to the wealth and comfort 
of the other : nor of the friendly controversy, which in its own 
place it might be well to raise, between the leanings of America 
to Protectionism, and the more daring reliance of the old country 
upon free and unrestricted intercourse with all the world. Nor of 
the menace which, in the prospective development of her resources, 
America offers to the commercial pre-eminence of England.* 
, #. . 

* [This topic was much more largely handled by me in the Financial Statement which I 
delivered as Chancellor of the Exchequer, on May 2, 1866. I recommend attention to the 
excellent article by Mr. Henderson, in the Contemporary Review for October, 1878: and I 
agree with the author in being disposed to think that the protective laws of America effect- 
ually bar the full development of her competing power.— W. E. G., Nov. 6, 1878.] 



28 KIN BEYOND SEA. 

On this subject I will only say that it is she alone who, at a 
coming time, can, and probably will, wrest from us that commer- 
cial primacy. We have no title, I have no inclination, to murmer 
at the prospect. If she acquires it, she will make the acquisition 
by the right of the strongest ; but, in this instance, the strongest 
means the best. She will probably become what we are now, 
the head servant in the great household of the World, the em- 
ployer of all employed ; because her service will be the most 
and ablest. We have no more title against her, than Venice, or 
Genoa, or Holland has had against us. One great duty is en- 
tailed upon us, which we unfortunately neglect ; the duty of pre- 
paring, by a resolute and sturdy effort, to reduce our public 
burdens, in preparation for a day when we shall probably have 
less capacit}' than we have now to bear them. 

3. Passing by all these subjects, with their varied attractions, 
. I come to another, which lies within the tranquil domain of polit- 
ical philosophy. The students of the future, in this department, 
will have much to say in the way of comparison between Ameri- 
can and British institutions. The relationship between these two 
is unique in history. It is alwa} T s interesting to trace and to com- 
pare Constitutions, as it is to compare languages ; especially in 
such instances as those of the Greek States and the Italian Repub- 
lics, or the diversified forms of the feudal system in the different 
countries of Europe. But there is no parallel in all the records 
of the world to the case of that prolific British mother, who has 
sent forth her innumerable children over all the earth to be the 
founders of a half-a-dozen empires. She, with her progeny, may 
almost claim to constitute a kind of Universal Church in politics. 
But, among these children, there is one whose place in the world's 
eye and in history is superlative : it is the American Republic. 
She is the eldest born. She has, taking the capacity of her land 
into view as well as its mere measurement, a natural base for the 
greatest continuous empire ever established by man. And it may 
be well here to mention what has not always been sufficiently 
observed, that the distinction between continuous empire, and 
empire severed and dispersed over sea, is vital. The develop- 
ment, which the Republic has effected, has been unexampled in its 
rapidity and force. While other countries have doubled, or at 
most trebled, their population, she has risen, during one single 
century of freedom, in round numbers, from two millions to forty- 



KIN BEYOND SEA. 29 

five. As to riches, it is reasonable to establish, from the decen- 
nial stages of the progress thus far achieved, a series for the future ; 
and reckoning upon this basis, I suppose that the very next 
Census, in the year 1880, will exhibit her to the world as certainly 
the wealthiest of all the nations. The huge figure of a thousand 
millions sterling, which may be taken roundly as the annual 
income of the United Kingdom, has been reached at a surprising 
rate ; a rate which may perhaps be best expressed by saying that, 
if we could have started forty or fifty years ago from zero, at the 
rate of our recent annual increment, we should now have reached 
our present position. But while we have been advancing with 
this portentioas rapidity, America is passing us b} T as if in a can- 
ter. Yet even now the work of searching the soil and the bowels 
of the territory, and opening out her enterprise throughout its 
vast expanse, is in its infancy. The England and the America of 
the present are probably the two strongest nations of the world. 
But there can hardly be a doubt, as between the America and the 
England of the future, that the daughter, at some no very distant 
time, will, whether fairer or less fair, be unquestionably yet strong- 
er than the mother. 

" O matre forti filia fortior."* 

4. But all this pompous detail of material triumphs, whether 
for the one or for the other, is worse than idle, unless the men of 
the two countries shall remain, or shall become, greater than the 
mere things that they produce, and shall know how to regard those 
things simply as tools and materials for the attainments of the 
highest purposes of their being. Ascending, then, from the 
ground floor of material industry towards the regions in which 
these purposes are to be wrought out, it is for each nation to con- 
sider how far its institutions have reached a state in which they 
can contribute their maximum to the store of human happiness 
and excellence. And for the political student all over the world, 
it will be beyond anything curious as well as useful to examine, 
with what diversities, as well as what resemblances, of apparatus, 
the two greater branches of a race born to command have been 
minded, or induced, or constrained to work out, in their sea-severed 
seats, their political destinies according to the respective laws 
appointed for them. 

*SeeHor. Od. I, 16. 



30 KIN BEYOND SEA. 

No higher ambition can find vent in a paper such as this, than 
to suggest the position and claims of the subject, and slightly to 
indicate a few outlines, or at least, fragments, of the working 
material. 

5. In many and the most fundamental respects the two still 
carry in undiminished, perhaps in increasing, clearness, the notes 
of resemblance that beseem a parent and a child. 

Both wish for self-government ; and, however grave the draw- 
backs under which in one or both it exists, the two have, among 
the great nations of the world, made the most effectual advances 
towards the true aim of rational politics. 

They are similarly associated in their fixed idea that the force, 
in which all government takes effect, is to be constantly backed, 
and, as it were, illuminated by thought in speech and writing. 
The ruler of St. Paul's time "bare the sword" (Rom. xiii. 4). 
Bare it, as the Apostle says, with a mission to do right ; but he 
says nothiug of any duty, or any custom, to show by reason that 
he was doing right. Our two governments, whatsoever they do, 
have to give reasons for it ; not reasons which will convince the 
unreasonable, but reasons which on the whole will convince the 
average mind, and carry it unitedly forwards in a course of action, 
often, though not always wise, and carrying within itself provis- 
ions, where it is unwise, for the correction of its own unwisdom 
before it grow into an intolerable rankness. They are govern- 
ments, not of force only, but of persuasion. 

6. Many more are the concords, and not less vital than these, 
of the two nations, as expressed in their institutions. They alike 
prefer the practical to the abstract. They tolerate opinion, with 
only a reserve on behalf of decency; and they desire to confine 
coercion to the province of action, and to leave thought, as such, 
entirely free. They set a high value on liberty for its own sake. 
They desire to give full scope to the principles of self-reliance in 
the people, and they deem self-help to be immeasurably superior 
to help in any other form; to be the only help, in short, which 
ought not to be continually, or periodically, put upon its trial, and 
required to make good its title. They mistrust and mislike the 
centralisation of power ; and they cherish municipal, local, even 
parochial liberties, as nursery grounds, not only for the production 
here and there of able men, but for the general training of public 
virtue and independent spirit. They regard publicit}" as the vital 



KIN BEYOND SEA. 31 

air of politics ; through which alone, in its freest circulation, opin- 
ions can be thrown into common stock for the good of all, and the 
balance of relative rights and claims can be habitually and peace- 
ably adjusted. It would be difficult in the case of any other pair 
of nations, to present an assemblage of traits at once so common 
and so distinctive, as has been given in this probably imperfect 
enumeration. 

7. There were, however, the strongest reasons why America 
could not grow into a reflection or repetition of England. Passing 
from a narrow island to a continent almost without bounds, the 
colonists at once and vitally altered their conditions of thought, 
as well as of existence, in relation to the most important and 
most operative of all social facts, the possession of the soil. In 
England, inequality lies imbedded in the very base of the social 
structure ; in America it is a late, incidental, unrecognized prod- 
uct, not of tradition, but of industry and wealth, as they advance 
with various and, of necessity, unequal steps. Heredity, seated 
as an idea in the heart's core of Englishmen, and sustaining far 
more than it is sustained by those of our institutions which 
express it, was as truly absent from the intellectual and moral 
store, with which the colonists traversed the Atlantic, as if it had 
been some forgotten article in the bills of lading that made up 
their cargoes. Equality combined with liberty, and renewable at 
each descent from one generation to another, like a lease with 
stipulated breaks, was the groundwork of their social creed. In 
vain was it sought, by arrangements such as those connected with 
the name of Baltimore or of Penn, to qualify the action of those 
overpowering forces which so determined the case. Slavery 
itself, strange as it now may seem, failed to impair the theory 
however it may have imported into the practice a hideous solecism. 
No hardier republicanism was generated in New England than in 
the Slave States of the South, which produced so many of the 
great statesmen of America. 

8. It inay be said that the North, and not the South, had the 
larger number of colonists ; and was the centre of those command- 
ing moral influences which gave to the country as a whole its 
political and moral atmosphere. The type and form of manhood 
for America was supplied neither by the Recusant in Maryland, 
nor by the Cavalier in Virginia, but by the Puritan of New Eng- 
land ; and it would have been a form and type widely different 



32 KIN BEYOND SEA. 

could the colonization have taken place a couple of centuries, or a 
single century, sooner. Neither the Tudor, nor even the Plan- 
tagenet period, could have supplied its special form. The Refor- 
mation was a cardinal factor in its production ; and this in more 
ways than one. 

9. Before that great epoch, the political forces of the country 
were represented on the whole by the Monarch on one side, and 
the people on the other. In the people, setting aside the latent 
vein of Lollardism, there was a general homogeneity with respect 
to all that concerned the relation of governors and governed. In 
the deposition of Sovereigns, the resistance to abuses, the establish- 
ment of institutions for the defence of liberty, there were no two 
parties to divide the land. But, with the Reformation a new 
dualism was sensibly developed among us. Not a dualism so vio- 
lent as to break up the national unity, but yet one so marked 'and 
substantial that thenceforward it was very difficult for any in- 
dividual or body of men to represent the entire English character,, 
and the old balance of its forces. The wrench which severed 
the Church and people from the Roman obedience left for domes- 
tic settlement thereafter a tremendous internal question, between 
the historical and the new, which in its milder form perplexes us 
to this day. Except during the short reign of Edward VI, the 
civil power, in various methods and degrees, took what may be 
termed the traditionary side, and favoured the development of the 
historical more than the individual aspect of the national religion. 
These elements confronted one another during the reigns of the 
earlier Stuarts, not only with obstinacy but with fierceness. 
There had grown up with the Tudors, from a variety of causes, a 
great exaggeration of the idea of Royal power ; and this arrived, 
under James I and Charles I, at a rank maturity. Not less, but 
even more masculine and determined, was the converse develop- 
ment. Mr. Hallam saw, and has said, that at the outbreak of the 
Great Rebellion, the old British Constitution was in danger, not 
from one party but from both. In that mixed fabric had once 
been harmonised the ideas, both of religious duty, and of allegi- 
ance as related to it, which were now held in severance. The 
hardiest and dominating portion of the American Colonists repre- 
sented that severance in its extremest form and had dropped out 
of the order of the ideas, which they carried across the water, all 
those elements of political Anglicism, which give to aristocracy 



KIN BEYOND SEA. 33 

in this country a position only second in strength to that of free- 
dom. State and Church alike had frowned upon them ; and their 
strong reaction was a reaction of their entire nature, alike of the 
spiritual and the secular man. All that was democratic in the 
policy of England, and all that was Protestant in her religion, they 
carried with them, in pronounced and exclusive forms, to a soil 
and a scene singularly suited for their growth. 

10. It is to the honour of the British Monarchy that, upon the 
wnole, it frankly recognised the facts, and did not pedantically 
endeavour to constrain by artificial and alien limitations the growth 
of the infant States. It is a thing to be remembered that the 
accusations of the colonies in 1776 were entirely levelled at the 
King actually on the throne, and that a general acquittal was thus 
given by them to every preceding reign. Their infancj' had been 
upon the whole what their manhood was to be, self -governed and 
republican. Their Revolution, as we call it, was like ours in the 
main, a vindication of liberties inherited and possessed. It was 
a Conservative revolution ; and the happ} T result was that, not- 
withstanding the sharpness of the collision with the mother-country, 
and with domestic loj'alism, the Thirteen Colonies made provision 
for their future in conformity, as to all that determined life and 
manners, with the recollections of their past. The two Constitu- 
tions of the two countries express indeed rather the differences 
than the resemblances of the nations. The one is a thing grown, 
the^other a thing made : the one a praxis, the other a poiesis : the 
one the offspring of tendenc}^ and intermediate time, the other of 
choice and of an epoch. But, as the British Constitution is the 
most subtle organism which has proceeded from the womb and the 
long gestation of progressive history, so the American Constitution 
is, so far as I can see, the most wonderful work ever struck off at 
a given time by the brain and purpose of man. It has had a 
century of trial, under the pressure of exigencies caused by an 
expansion unexampled in point of rapidity and range : and its 
exemption from formal change, though not entire, has certainly 
proved the sagacity of the constructors, and the stubborn strength 
of the fabric. 

11. One whose life has been greatly absorbed in working, with 
others, the institutions of his own country, has not had the oppor- 
tunities necessary for the careful and searching scrutiny of institu- 
tions elsewhere. I should feel, in looking at those of America, 



34 KIN BEYOND SEA. 

like one who attempts to scan the stars with the naked eye. My 
notices can only be few, faint, and superficial ; they are but an in- 
troduction to what I have to say of the land of my birth. A few 
sentences will dispose of them. 

12. America, whose attitude towards England has always been 
masculine and real, has no longer to anticipate at our hands the 
frivolous and offensive criticisms which were once in vogue among 
us. But neither nation prefers (and it would be an ill sign if 
either did prefer) the institutions of the other ; and we certainly 
do not contemplate the great Republic in the spirit of mere opti- 
mism. We see that it has a marvellous and unexampled adap- 
tation for its peculiar vocation ; that it must be judged, not in the 
abstract, but under the fore-ordered laws of its existence ; that it 
has purged away the blot with which we brought it into the world ; 
that it bravely and vigorously grapples with the problem of making 
a Continent into a State ; and that it treasures with fondness the 
traditions of British antiquity, which are in truth unconditionally 
its own, as well, and as much as they are ours. The thing that 
perhaps chiefly puzzles the inhabitants of the old country, is wiry the 
American people should permit their entire existence to be contin- 
ually disturbed by the business of the Presidential elections ; and, 
still more, why they should raise to its maximum the intensit}^ of 
this perturbation by providing, as we are told, for what is termed 
a clean sweep of the entire Civil Service, in all its ranks and de- 
partments, on each accession of a Chief Magistrate. We do not 
perceive wiry this arrangement is more rational than would be a 
corresponding usage in this countoy on each change of Ministry. 
Our practice is as different as possible. We limit to a few scores 
of persons the removals and appointments on these occasions ; 
although our Ministries seem to us, not unfrequently, to be more 
sharply severed from one another in principle and tendency than 
are the successive Presidents of the great Union. 

13. It would be out of place to discuss in this article occasional 
phenomena of local corruption in the United States, by which the 
nation at large can hardh T be touched : or the mysterious manipu- 
lations of votes for the Presidenc}', which are now understood to 
be under examination ; or the very curious influences which are 
shaping the politics of the negroes and of the South. These last 
are corollaries to the great slave-question ; and it seems very pos- 
sible that after a few years we may see most of the labourers, both 



KIN BEYOND SEA. 35 

in the Southern States and in England, actively addicted to the 
political support of that section of their countrymen who to the 
last had resisted their emancipation. 

14. But if there be those in this country who think that Ameri- 
can democracy means public levity and intemperance, or a lack of 
skill and sagacity in politics, or the absence of self-command and 
self-denial, let them bear in mind a few of the most salient and 
recent facts of history which may profitably be recommended to 
their reflections. We emancipated a million of negroes by peace- 
ful legislation ; America liberated four or five millions by a bloody 
civil war : yet the industry and exports of the Southern States are 
maintained, while those of our negro colonies have dwindled ; the 
South enj'03's all its franchises, but we have proh pudor ! found no 
better method of providing for peace and order in Jamaica, the 
chief of our islands, than by the hard and vulgar, even where need- 
ful, expedient of abolishing entirely its representative institutions. 

15. The Civil War compelled the States, both North and South, 
to train and embod}' a million and a half of men, and to present 
to view the greatest, instead of the smallest, armed forces in the 
world. Here there was supposed to arise a double danger. First 
that, on a sudden cessation of the war, military life and habits 
could not be shaken off, and, having become rudely and widely 
predominant, would bias the country towards an aggressive policy, 
or, still worse, would find vent in predatory or revolutionary oper- 
ations. Secondly, that a military caste would grow up with its 
habits of exclusiveness and command, and would influence the 
tone of politics in a direction adverse to republican freedom. But 
both apprehensions proved to be wholly imaginary. The innu- 
merable soldiery was at once dissolved. Cincinnatus, no longer 
an unique example, became the commonplace of every day, the 
type and mould of a nation. The whole enormous mass quietly 
resumed the habits of social life. The generals of yesterday were 
the editors, the secretaries, and the solicitors of to-day. The 
just jealousy of the State gave life to the now forgotten maxim of 
Judge Blackstone, who denounced as perilous the erection of a 
separate profession of arms in a free country. The standing 
army, expanded bj- the heat of civil contest to gigantic dimen- 
sions, settled down again into the framework of a miniature with 
the returning temperature of civil life, and became a power well 
nigh invisible, from its minuteness, amidst the powers which sway 
the movements of a society exceeding forty millions. 



36 KIN BEYOND SEA. 

16. More remarkable still was the financial sequel to the great 
conflict. The internal taxation for federal purposes, which before 
its commencement had been unknown, was raised, in obedience to 
an exigency of life and death, so as to exceed every present and 
every past example. It pursued and worried all the transactions of 
life. The interest of the American debt grew to be the highest in 
the world, and the capital touched five hundred and sixty millions 
sterling. Here was provided for the faith and patience of the 
people a touchstone of extreme severity. In England, at the close 
of the great French war, the propertied classes, who were supreme 
in Parliament, at once rebelled against the Tory Government, and 
refused to prolong the Income Tax even for a single year. We 
talked big, both then and now, about the pa}- ment of our National 
Debt ; but sixty-three } r ears have since elapsed, all of them except 
two called years of peace, and we have reduced the huge total by 
about one-ninth ; that is to say, by little over one hundred mil- 
lions, or scarcely more than one million and a half a year. This 
is the conduct of a State elaborately digested into orders and 
degrees, famed for wisdom and forethought, and consolidated by 
a long experience. But America continued long to bear, on her 
unaccustomed and still smarting shoulders, the burden of the war 
taxation. In twelve years she has reduced her debt by one hun- 
dred and fifty-eight millions sterling, or at the rate of thirteen 
millions for every 3 7 ear. In each twelve months she has done 
what we did in eight } T ears ; her self-command, self-denial, and 
wise forethought for the future have been, to say the least, 
ei^ht-fold ours. These are facts which redound greatly to her 
honour ; and the historian will record with surprise that an enfran- 
chised nation tolerated burdens which in this country a selected 
class, possessed of the representation, did not dare to face, and 
that the most unmitigated democracy known to the annals of the 
world resolutely reduced at its own cost prospective liabilities of 
the State, which the aristocratic, and plutocratic, and Monarchical 
Government of the United Kingdom has been contented ignobly to 
hand over to posterity. And such facts should be told out. It 
is our fashion so to tell them, against as well as for ourselves; 
and the record of them may some day be among the means of 
stirring us up to a policy more worthy of the name and fame of 
England. 

17. It is true, indeed, that we lie under some heavy and, I 
fear, increasing disadvantages, which amount almost to disabili- 



KIN BEYOND SEA. 37 

ties. Not, however, any disadvantage respecting power, as 
power is commonly understood. But, while America has a nearly 
homogeneous country, and an admirable division of political 
labour between the States individually and the Federal Govern- 
ment, we are, in public affairs, an overcharged and overweighted 
people.* 

We have undertaken the cares of Empire upon a scale, and with 
a diversity, unexampled in histor} r ; and, as it has not yet pleased 
Providence to endow us with brain force and animal strength 
in an equally abnormal proportion, the consequence is that we 
perform the work of government, as to many among its more 
important departments, in a very superficial and slovenly man- 
ner. The affairs of the three associated Kingdoms, with their 
great diversities of law, interest, and circumstance, make the 
government of them, even if they stood alone, a business more 
voluminous, so to speak, than that of any other thirty-three mil- 
lions of civilized men. To lighten the cares of the central legisla- 
ture by judicious devolution, it is probable that much might be 
done ; but nothing is done, or even attempted to be done. The 
greater Colonies have happily attained to a virtual self-govern- 
ment ; yet the aggregate mass of business connected with our 
colonial possessions continues to be very large. The Indian 
Empire is of itself a charge so vast, and demanding so much 
thought and care, that if it were the sole transmarine appendage to 
the Grown, it would amply tax the best ordinary stock of human 
energies. Notoriously, it obtains from the Parliament only a 
small fraction of the attention it deserves. Questions affecting in- 
dividuals, again, or small interests, or classes, excite here a 
greater interest, and occupy a larger share of time, than, perhaps, 
in any other community. In no countiy, I may add, are the inter- 
ests of persons or classes so favoured when they compete with 
those of the public ; and in none are they more exacting, or more 
wakeful to turn this advantage to the best account. With the 
vast extension of our enterprise and our trade, comes a breadth of 
liability not less large, to consider everything that is critical in the 
affairs of foreign States ; and the real responsibilities, thus ex- 

* [This subject has been more fully developed by me in an article on 'England's 
Mission,' contributed to The Nineteenth Century for September of the present year. — 
W. E. G., December 1878.] 



38 KIN BEYOND SEA. 

isting for us, are unnaturally inflated by fast-growing tendencies 
towards exaggeration of our concern in these matters, and even 
towards setting up fictitious interests in cases where none can 
discern them except ourselves, and such Continental friends as 
practise upon our credulity and our fears for purposes of their 
own. Last of all, it is not to be denied that in what I have been 
saying, I do not represent the public sentiment. The nation is 
not at all conscious of being overdone. The people see that their 
House of Commons is the hardest-working legislative assembly in 
the world : and, this being so, they assume it is all right. Noth- 
ing pa} r s better, in point of popularity, than those gratuitous addi- 
tions to obligations already beyond human strength, which look 
like accessions or assertion of power ; such as the annexation of 
new territory, or the silly transaction known as the purchase 
of shares in the Suez Canal. 

18. All my life long I have seen this excess of work as com- 
pared with the power to do it ; but the evil has increased with the 
surfeit of wealth, and there is no sign that the increase is near its 
end. The people of this country are a very strong people ; but 
there is no strength that can permanently endure, without provok- 
ing inconvenient consequences, this kind of political debauch. It 
may be hoped, but it cannot be predicted, that the mischief will be 
encountered and subdued at the point where it will have become 
sensibly troublesome, but will not have grown to be quite irreme- 
diable. * 

19. The main and central point of interest, however, in the in- 
stitutions of a country is the manner in which it draws together 
and compounds the public forces in the balanced action of the 
State. It seems plain that the formal arrangements for this pur- 
pose in America are very different from ours. It may even be a 
question whether they are not, in certain respects, less popular ; 
whether our institutions do not give more rapid effect, than those 
of the Union, to any formed opinion, and resolved intention, of the 
nation. 

20. In the formation of the Federal government we seem to 
perceive three stages of distinct advancement. First, the forma- 
tion of the Confederation, under the pressure of the War of Inde- 
pendence. Secondly, the Constitution, which placed the Federal 
Goverment in defined and direct relation with the people inhabiting 
the several States. Thirdly, the struggle with the South, which 



KIN BEYOND SEA. 39 

for the first time, and definitely, decided that to the Union, 
through its Federal organisation, and not to the State-govern- 
ments, were reserved all the questions not decided and disposed 
of by the express provisions of the Constitution itself.* The 
great arcanum imperii, which with us belongs to the three 
branches of the legislature, and which is expressed by the current 
phrase, k "omnipotence of Parliament," thus became the acknowl- 
edged property of the three branches of the Federal legislature ; 
and the old and respectable doctrine of State Independence is now 
no more than an archaeological relic, a piece of historical antiqua- 
rianism. Yet the actual attributions of the State authorities cover 
by far the largest part of the province of Government ; and b}- 
this division of labour and authority, the problem of fixing for the 
nation a political centre of gravity is divested of a large part of its 
difficulty and danger, in some proportions to the limitations of the 
working precinct. 

21. Within that precinct, the initiation as well as the final 
sanction in the great business of finance is made over to the pop- 
ular branch of the Legislature, and a most interesting question 
arises upon the comparative merits of this arrangement, and of 
our own method, which theoreticallv throws upon the Crown the 
responsibility of initiating public charge, and under which, until a 
recent period, our practise was in actual and even close corres- 
pondence with this theory. 

22. We next come to a difference still more marked. The 
Federal Executive is born anew of the nation at the end of each 
four 3'ears, and dies at the end. But, during the course of those 
years, it is independent, in the person both of the President and 
of his Ministers, alike of the people, of their representatives, and 
of that remarkable body, the most remarkable of all the inventions 
of modern politics, the Senate of the United States. In this im- 
portant matter, whatever be the relative excellences and defects 

* [This is a proposition of great importance in a disputed subject-matter ; and con- 
sequently I have not announced it in a dogmatic manner, but as a portion of what we 
"seem to perceive" in the progress of the American Constitution. It expresses an 
opinion formed by me upon an examination of the original documents, and with some 
attention to the history, which I have always considered, and have often recommended 
to others, as one of the most fruitful studies of modern politics. This is not the proper 
occasion to develop its grounds : but I may say that I am not at all disposed to sur. 
render it in deference to one or two rather contemptuous critics. — W. E. G., December 
1868.1 



40 KIN BEYOND SEA. 

of the British and American sj'stems, it is most certain that noth- 
ing would induce the people of this country, or even the Tory 
portion of them, to exchange our own for theirs. It may, indeed, 
not be obvious to the foreign eye what is the exact difference of 
the two. Both the representative chambers hold the power of the 
purse. But in -America its conditions are such that it does not 
operate in any way on behalf of the Chamber or of the nation, as 
against the Executive. In England, on the contrary, its efficiency 
has been such that it has worked out for itself channels of effec- 
tive operation, such as to dispense with its direct use, and avoid 
the inconveniences which might be attendant upon that use. A 
vote of the House of Commons, declaring a withdrawal of its 
confidence, has always sufficed for the purpose of displacing a 
Ministry ; nay, persistent obstruction of its measures, and even 
lighter causes, have conveyed the hint, which has been obediently 
taken. But the people, how is it with them? Do not the people 
in England part with their power, and make it over to the House 
of Commons, as completely as the American people part with it 
to the President? They give it over for four years: we for a 
period which on the average is somewhat more : they, to resume it 
at a fixed time ; we, on an unfixed contingency, and at a time 
which will finally be determined, not according to the popular will, 
but according to the views which a Ministry ma} T entertain of its 
duty or convenience. 

23. All this is true ; but it is not the whole truth. In the 
United Kingdom, the people as such cannot commonly act upon 
the Ministry as such. But mediately, though not immediately, 
they gain the end : for they can work upon that which works upon 
the Ministry, namely, on the House of Commons. Firstly, they 
have not renounced, like the American people, the exercise of 
their power for a given time ; and they are at all times free by 
speech, petition, public meeting, to endeavour to get it back in 
full by bringing about a dissolution. Secondly, in a Parliament 
with nearly 660 members, vacancies occur with tolerable frequency ; 
and, as they are commonly filled up forthwith, they continually 
modify the colour of the Parliament, conformably, not to the past, 
but to the present feeling of the nation ; or, at least, of the con- 
stituency, which for practical purposes is different indeed, yet not 
very different. But, besides exercising a limited positive influ- 
ence on the present, they supply a much less limited indication of 



KIN BEYOND SEA. 41 

the future. Of the members who at a given time sit in the House 
of Commons, the vast majority, probably more than nine-tenths, 
have the desire to sit there again, after a dissolution which may 
come at any moment. They, therefore, study political weather- 
wisdom, and in varying degrees adapt themselves to the indica- 
tions of the sky. It will now be readily perceived how the 
popular sentiment in England, so far as it is awake, is not meanly 
provided with the ways of making itself respected, whether for the 
purpose of displacing and replacing a Ministry, or of constraining 
it (as sometimes happens) , to alter or reverse its policy sufficient- 
ly, at least, to conjure down the gathering and muttering storm. 

24. It is true, indeed, that every nation is of necessity, to a 
great extent, in the condition of the sluggard with regard to public 
policy ; hard to rouse, harder to keep aroused, sure after a little 
while to sink back into his slumber : — 

"Pressitque jacentem, 
Dulcis et alta quies, placidaeque sfmillima morti." — v*En. vi. 522. 

The people have a vast, but an encumbered power ; and, in 
their struggles with overweening authority, ov with property, the 
excess of force, which the} T undoubtedly possess, is more than 
counterbalanced by the constant wakefulness of the adversary, by 
his knowledge of their weakness, and by his command of oppor- 
tunity. But this is a fault lying rather in the conditions of human 
life than in political institutions. There is no known mode of 
making attention and iu attention equal in their results. It is 
enough to say that in England, when the nation can attend, it can 
prevail. So we may say, then, that in the American Union the 
Federal Executive is independent for each four years both of the 
Congress and of the people. But the British Ministry is largely 
dependent on the people whenever the people firmly will it ; and is 
always dependent on the House of Commons, except of course 
when it can safely and effectually appeal to the people. 

25. So far, so good. Bat if we wish really to understand the 
manner in which the Queen's Government over the British Empire 
is carried on, we must now prepare to examine into some sharper 
contrasts than an}' which our path has yet brought into view. The 
power of the American Executive resides in the person of the 
actual President, aud passes from him to his successor. His Min- 
isters, grouped around him, are the servants, not only of his 
office, but of his mind. The intelligence, which carries on the 



42 KIN BEYOND SEA. 

Government, has its main seat in him. The responsibility of 
failures is understood to fall on him ; and it is round his head that 
success sheds its halo. The American Government is described, 
truly as a Government composed of three members, of three 
powers distinct from one another. The English Government is 
likewise so described, not truly, but conventionally. For in the 
English Government there has gradually formed itself a fourth 
power, entering into and sharing the vitality of each of the other 
three, and charged with the business of holding them in harmony 
as they march. 

26. This Fourth Power is the Ministry, or more properly the 
Cabinet. For the rest of the Ministry is subordinate and 
ancillar}^ ; and, though it largely shares in many departments the 
labours of the Cabinet, yet it has only a secondary and derivative 
share in the higher responsibilities. No account of the present 
British Constitution is worth having which does not take this 
Fourth Power largely and carefully into view. And 3-et it is not a 
distinct power, made up of elements unknown to the other three ; 
any more than a sphere contains elements other than those refer- 
able to the three co-ordinates, which determine the position of 
every point in space. The Fourth Power is parasitical to the 
three others ; and lives upon their life, without any separate 
existence. One portion of it forms a part, which may be termed 
an integral part, of the House of Lords, another of the House of 
Commons ; and the two conjointly, nestling within the precinct of 
Royalt} 7 , form the inner Council of the Crown, assuming the whole 
of its responsibilities, and in consequence wielding, as a rule, its 
powers. The Cabinet is the three-fold hinge that connects 
together for action the British Constitution of King or Queen, 
Lords, and Commons. Upon it is concentrated the whole strain 
of the Government, and it constitutes from day to day the true 
centre of gravity for the working system of the State, although 
the ultimate superioritj- of force resides in the representative 
chamber. 

27. There is no statute or legal usage of this country which 
requires that the Ministers of the Crown should hold seats in the 
one or the other House of Parliament. It is perhaps upon this 
account that, while most of my countrymen would, as I suppose, 
declare it to be a becoming and convenient custom, yet compara- 
tively few are aware how near the seat of life the observance lies, 



KIN BEYOND SEA. 43 

how closeh* it is connected with the equipoise and unity of the 
social forces. It is rarely departed from, even in an individual 
case; never, as far as my knowledge goes, on a wider scale. 
From accidental circumstances it happened that I was a Secretary 
of State between December 1845 and July 1846, without a seat in 
the House of Commons. This (which did not pass wholly without 
challenge) is, 1 believe, by much the most notable instance for the 
last fifty years ; and it is only within the last fifty years that our 
Constitutional system has completely settled down. Before the 
reform of Parliament, it was always easy to find a place for a Min- 
ister excluded from his seat ; as Sir Robert Peel, for example, 
ejected from Oxford University, at once found refuge and repose 
at Tarn worth. I desire to fix attention on the identification, in 
this country, of the Minister with the member of a House of 
Parliament. 

28. It is, as to the House of Commons especially, an insepara- 
ble and vital part of our system. The association of the Minis- 
ters with the Parliament, and through the House of Commons 
with the people, is the counterpart of their association as Minis- 
ters with the Crown and the prerogative. The decisions that they 
take are taken under the competing pressure of a bias this way 
and a bias that way, and strictly represent what is termed in 
mechanics the composition of forces. Upon them, thus placed, 
it devolves to provide that the Houses of Parliament shall loyally 
counsel and serve the Crown, and that the crown shall act strictly 
in accordance with its obligations to the nation. I will not pre- 
sume to say whether the adoption of the rule in America would or 
would not lay the foundation of a great change in the Federal 
Constitution ; but I am quite sure that the abrogation of it in 
England would either alter the form of government, or bring- 
about a crisis. That it conduces to the personal comfort of Min- 
isters, I will not undertake to say. The various currents of 
political and social influences meet edgeways in their persons, 
much like the conflicting tides in St. George's Channel or the 
Straits of Dover ; for, while they are the ultimate regulators of 
the relations between the Crown on the one side, and the people 
through the Houses of Parliament on the other, they have no 
authority vested in them to coerce or censure either way. Their 
attitude towards the Houses must always be that of deference ; 
their language that of respect, if not submission. Still more must 



44 KIN BEYOND SEA. 

their attitude and language towards the Sovereign be the same Ira 
principle, and jet more marked in form ; and this, though upon 
them lies the ultimate responsibility of deciding what shall be 
done in the Crown's name in every branch of administration, and 
every department of policy, coupled only with the alternative of 
ceasing to be Ministers, if what they may advisedly deem the 
requisite power of action be denied them. 

29. In the ordinary administration of the government, the 
Sovereign personally is, so to speak, behind the scenes ; perform- 
ing, indeed, many personal acts by the Sign-manual, or otherwise, 
but, in each and all of them, covered by the counter-signature or 
advice of Ministers, who stand between the august Personage and 
the people. There is, accordingly, no more power, under the 
form of our Constitution, to assail the Monarch in his personal 
capacit} 7 , or to assail through him, the line of succession to the 
Crown, than there is at chess to put the king in check. In truth f 
a good deal, though by no means the whole, of the philosophy of 
the British Constitution is represented in this central point of the 
wonderful game, against which the only reproach — the reproach of 
Lord Bacon — is that it is hardly a relaxation, but rather a serious 
tax upon the brain. 

30. The Sovereign in England is the s3~mbol of the nation's 
unity, and the apex of the social structure ; the maker (with 
advice) of the laws ; the supreme governor of the Church ; the 
fountain of justice ; the sole source of honor ; the person to 
whom all military, all naval, all civil service is rendered. The 
Sovereign owns very large properties ; receives and holds, in law, 
the entire revenue of the State ; appoints and dismisses Minis- 
ters ; makes treaties ; pardons crime, or abates its punishment ; 
wages war, or concludes peace ; summons and dissolves the Par- 
liament ; exercises these vast powers for the most part without 
any specified restraint of law ; and }~et enjoys, in regard to these 
and every other function, an absolute immunity from consequences. 
There is no provision in the law of the United Empire, or in the 
machinery of the Constitution, for calling the Sovereign to 
account ; and only in one solitary and improbable, but perfectly 
defined case— -that of his submitting to the jurisdiction of the Pope 
— is he deprived by Statute of the Throne. Setting aside that 
peculiar exception, the offspring of a necessity still freshly felt 
when it was made, the Constitution might seem to be founded on 



KIN BEYOND SEA. 45 

the belief of a real infallibility in its head. Less, at any rate, 
cannot be said than this. Regal right has, since the revolution of 
1688, been expressly founded upon contract ; and the breach of 
that contract destroys the title to the allegiance of the subject. 
But no provision, other than the general rule of hereditary suc- 
cession, is made to meet either this case, or an} T other form of 
political miscarriage or misdeed. It seems as though the Genius 
of the Nation would not stain its lips by so much as the mere 
utterance of such a word ;. nor can we put this state of facts into 
language more justly than by saying that the Constitution would 
regard the default of the Monarch, with his heirs, as the chaos of 
the State, and would simply trust to the inherent energies of 
the several orders of society for its legal reconstruction. 

31. The original authorship of the representative system is 
commonly accorded to the English race. More clear and indispu- 
table is its title to the great political discovery of Constitutional 
Kingship. And a very great discovery it is. Whether it is des- 
tined, in any future day, to minister in its integrity to the needs 
of the New World, it ma}^ be hard to sa}^. In that important 
branch of its utility which is negative, it completely serves the 
purposes of the many strong and rising colonies of Great Britain, 
and saves them all the perplexities and perils attendant upon suc- 
cessions to the headship of the Executive. It presents to them, 
as it does to us, the symbol of unity, and the object of all our 
political veneration, which we love to find rather in a person, than 
in an abstract entity, like the State. But the Old World, at any 
rate, still is, and may long continue, to constitute the living centre 
of civilization, and to hold the. primacy of the race ; and of this 
great society the several members approximate, in a rapidly ex- 
tending series, to the practice and idea of Constitutional King- 
ship. The chief States of Christendom, with only two exceptions, 
have, with more or less distinctness, adopted it. Many of them, 
both great and small, have thoroughly assimilated it to their 
system. The autocracy of Russia, and the Republic of France, 
each of them congenial to the present wants of the respective 
countries, may yet, hereafter, gravitate towards the principle, 
which elsewhere has developed so large an attractive power. 
Should the current, that has prevailed through the last half-cen- 
tur} r , maintain its direction and its strength, another fifty years 
may see all Europe adhering to the theory and practice of this 



46 KIN BEYOND SEA. 

beneficent institution, and peaceably sailing in the wake of 
England. 

32. No doubt, if tried by an ideal standard, it is open to criti- 
cism. Aristotle and Plato, nay, Bacon, and perhaps Leibnitz, 
would have scouted it as a scientific abortion. Some men would 
draw disparaging comparisons between the mediaeval and the 
modern King. In the person of the first was normally embodied 
the force paramount over all others in the county, and on him 
was laid a weight of responsibility and toil so tremendous, that 
his function seems alwaj T s to border upon the superhuman ; that 
his life commonly wore out before the natural term ; and that an 
indescribable majesty, dignity, and interest surround him in his 
misfortunes, nay, almost in his degradation ; as, for instance, 
amidst 

"The shrieks of death, through Berkeley's roof that ring, 
Shrieks of an agonising King." * 

33. For this concentration of power, toil, and liability, milder 
realities have now been substituted ; and Ministerial responsibility 
comes between the Monarch and every public trial and necessity, 
like armour between the flesh and the spear that would seek to 
pierce it ; only this is an armour itself also fleshy, at once living 
and impregnable. It may be said, by an adverse critic, that the 
Constitutional Monarch is only a depositary of power, as an 
armoury is a depositor}?- of arms ; but that those who wield the 
arms, and those alone, constitute the true governing authority. 
And no doubt this is so far true, that the scheme aims at 
associating in the work of government with the head of the State 
the persons best adapted to meet the wants and wishes of the 
people, under the conditions that the several aspects of supreme 
power shall be severally allotted ; dignity and visible authority 
shall lie wholly with the wearer of the crown, but labour mainly, 
and responsibility wholly with its servants. From hence, without 
doubt, it follows that should differences arise, it is the will of those 
in whose minds the work of government is elaborated that in the 
last resort must prevail. From mere labour, power may be. 
severed ; but not from labour joined with responsibility. This 
capital and vital consequence flows out of the principle that the 
political action of the Monarch shall everywhere be mediate and 
conditional upon the concurrence of confidential advisers. It is 

* Gray's 'Bard.' 



KIN BEYOND SEA. 47 

impossible to reconcile am*, even the smallest, abatement of this 
doctrine, with the perfect, absolute immunity of the Sovereign 
from consequences. There can be in England no disloyalty more 
gross, as to its effects, than the superstition which affects to assign 
to the Sovereign a separate, and, so far as separate, transcen- 
dental sphere of political action. Anonymous servility has, 
indeed, in these last daj's, hinted such a doctrine ;* but it is no 
more practicable to make it thrive in England, than to rear the 
jungles of Bengal on Salisbury Plain. 

34. There is, indeed, one great and critical act, the responsi- 
bility for which falls momentarily or provisionally on the 
Sovereign ; it is the dismissal of an existing Ministry, and the 
appointment of a new one. This act is usually performed with 
the aid drawn from authentic manifestations of public opinion, 
mostly such as are obtained through the votes or conduct of the 
House of Commons. Since the reign of George III there has 
been but one change of Ministry in which the Monarch acted with- 
out the support of these indications. It was when William IV, 
in 1834, dismissed the Government of Lord Melbourne, which was 
known to be supported, though after a lukewarm fashion, by a 
large majority of the existing House of Commons. But the 
Royal responsibility was, according to the doctrine of our Consti- 
tution, completely taken over, ex post facto, by Sir Robert Feel, 
as the person who consented, on the call of the King, to take Lord 
Melbourne's office. Thus, though the act was rash, and hard to 
justify, the doctrine of personal immunit}* was in no way en- 
dangered. And here we maj- notice, that in theory an absolute 
personal immunity implies a correlative limitation of power, 
greater than is always found in practice. It can hardly be said 
that the King's initiative left to Sir R. Peel a freedom perfectly 
unimpaired. And, most certainly, it was a very real exercise of 
personal power. The power did not suffice for its end, which was 
to overset the Liberal predominance ; but it very nearly sufficed. 
Unconditionally entitled to dismiss the Ministers, the Sovereign 
can, of course, choose his own opportunitj*. He may defy the 
Parliament, if he can count upon the people. William IV, in the 
year 1834, had neither Parliament nor people with him. His act 
was within the limits of the Constitution, for it was covered by the 
responsibility of the acceding Ministry. But it reduced the Liberal 

* Quarterly Review, April, 1878. Art. I. 



48 KIN BEYOND SEA. 

majority from a number considerably beyond three hundred to 
about thirty ; and it constituted an exceptional, but very real and 
large action on the politics of the country, by the direct will of 
the King. I speak of the immediate effects. Its eventual result 
may have been different, for it converted a large disjointed mass 
into a smaller but organised and sufficient force, which held the 
fortress of power for the six years 1835-41. On this view it may 
be said that, if the Royal intervention anticipated and averted 
decay from natural causes, then with all its immediate success, it 
defeated its own real aim. 

35. But this power of dismissing a Ministry at will, large as it 
ma}' be under given circumstances, is neither the safest, nor the 
only power which, in the ordinary course of things, falls Constitu- 
tionally to the personal share of the wearer of the crown. He is 
entitled on all subjects coming before the Ministry, to knowledge 
and opportunities of discussion, unlimited save by the iron neces- 
sities of business. Though decisions must ultimately conform to 
the sense of those who are to be responsible for them, yet their 
business is to inform and persuade the Sovereign, not to overrule 
him. Were it possible for him, within the limits of human time 
and strength, to enter actively into all public transactions, he 
would be fully entitled to do so. What is actually submitted is 
supposed to be the most fruitful and important part, the cream of 
affairs. In the discussion of them, the Monarch has more than 
one advantage over his advisers. He is permanent, they are 
fugitive ; he speaks from the vantage-ground of a station unap- 
proachably higher; he takes a calm and leisurely survey, while 
the3 T are worried with the preparatory stages, and their force is 
often impaired bj T the pressure of countless detail. He may be, 
therefore, a weighty factor in all deliberations of State. Every 
discovery of a blot, that the studies of the Sovereign in the 
domain of business enable him to make, strengthens his hands and 
enhances his authority. It is plain, then, that there is abundant 
scope for mental activity to be at work under the gorgeous robes 
of Roj^alt} 7 . 

36. This power spontaneously takes the form of influence ; 
and the amount of it depends, on a variety of circumstances ; on 
talent, experience, tact, weight of character, steady, untiring in- 
dustry, and habitual presence at the seat of government. In pro- 
portion as any of these might fail, the real and legitimate influence 



KIN BEYOND SEA. 49 

of the Monarch over the course of affairs would diminish ; in pro- 
portion as they attain to fuller action, it would increase. It is a 
moral, not a coercive, influence. It operates through the will and 
reason of the Ministry, not over or against them. It would be an 
evil and a perilous day for the Monarchy, were any prospective 
possessor of the Crown to assume or claim for himself final, or 
preponderating, or even independent power, in any one department 
of the State. The ideas and practice of the time of George III, 
whose will in certain matters limited the action of the Ministers, 
cannot be revived, otherwise than by what would be, on their part, 
nothing less than a base compliance, a shameful subserviency, dan- 
gerous to the public weal, and, in the highest degree, disloyal to 
the dynast}'. Because, in every free State, for ever}^ public act, 
some one must be responsible ; and the question is, Who shall it 
be ? The British Constitution answers : The Minister, and the 
Minister exclusively. That he may be responsible, all action 
must be fully shared by him. Sole action, for the Sovereign, 
would mean undefended, unprotected action ; the armour of irre- 
sponsibility would not cover the whole body against sword or spear ; 
a head would project beyond the awning, and would invite a sun- 
stroke. 

37. The reader, then, will clearly see that there is no distinc- 
tion more vital to the practice of the British Constitution, or to a 
right judgment upon it, than the distinction between the Sovereign 
and the Crown. The Crown has large prerogatives, endless func- 
tions essential to the dail} T action, and even the life of the State. 
To place them in the hands of persons who should be mere tools 
in a Royal will, would expose those powers to constant unsup- 
ported collision with the living forces of the nation, and to a 
certain and irremediable crash. They are therefore entrusted to 
men, who must be prepared to answer for the use they make of 
them. This ring of responsible Ministerial agency forms a fence 
around the person of the Sovereign, which has thus far proved 
impregnable to all assaults. The august personage, who from 
time to time may rest within it, and who may possess the art of 
turning to the best account the countless resources of the position, 
is no dumb and senseless idol ; but, together with real and very 
large means of influence upon polic}^, enjoys the undivided rever- 
ence which a great people feels for its head ; and is likewise the 
first and k by far the weightiest among the forces, which greatly 
mould, by example and legitimate authority, the manners, nay the 



50 KIN BEYOND SEA. 

morals, of a powerful aristocracy and a wealthy and highly trained 
society. The social influence of a Sovereign, even if it stood 
alone, would be an enormous attribute. The English people are 
not believers in equality ; they do not, with the famous Declara- 
tion of July 4th, 1776, think it to be a self-evident truth that all 
men are born equal. The} T hold rather the reverse of that proposi- 
tion. At any rate, in practice, they are what I may call 
determined inequalitarians ; nay, in some cases, even without 
knowing it. Their natural tendency, from the very base of British 
society, and through all its strongly built gradations, is to look 
upwards : they are not apt to "untune degree." The Sovereign is 
the highest height of the system ; is, in that system, like Jupiter 
among the Roman gods, first without a second. 

"Nee viget quicquam simile aut secundum."* 

Not like Mont Blanc, with rivals in his neighbourhood ; but like 
Ararat or Etna, towering alone and unapproachable. The step 
downward from the King to the second person in the realm is not 
like that from the second to the third : it is more even than a 
stride, for it traverses a gulf. It is the wisdom of the British 
Constitution to lodge the personality of its chief so high, that 
none shall under any circumstances be tempted to vie, no, nor 
dream of vieing, with it. The office, however, is not confused, 
though it is associated, with the person ; and the elevation of 
official dignity in the Monarch of these realms has now for a test- 
ing period worked well, in conjunction with the limitation of 
merely personal power. 

38. In the face of the country, the Sovereign and the Minis- 
ters are an absolute unity. The one may concede to the other ; 
but the limit of concessions by the Sovereign is at the point where 
he becomes willing to try the experiment of changing his Govern- 
ment ; and the limit of concession by the Ministers is at the point 
where they become unwilling to bear, what in all circumstances 
they must bear while they remain Ministers, the undivided 
responsibility of all that is done in the Crown's name. But it is 
not with the Sovereign only that the Ministry must be welded into 
identit}^. It has a relation to sustain to the House of Lords ; 
which need not, however, be one of entire unity, for the House of 
Lords, though a great power in the State, and able to cause great 
embarrassment to an Administration, is not able by a vote to 

* Hor. Od. I. xii. 18. 



KIN BEYOND SEA. 51 

doom it to capital punishment. Only for fifteen years, out of the 
last fifty, has the Ministry of the day possessed the confidence of 
the House of Lords. On the confidence of the House of Commons 
it is immediately and vitally dependent. This confidence it must 
always possess, either absolutely from identity of political colour, 
or relatively and conditionally. This last case arises when an 
accidental dislocation of the majority in the Chamber has put the 
machine for the moment out of gear, and the unsafe experiment of 
a sort of provisional government, doomed on the one hand to be 
feeble, or tempted on the other to be dishonest, is tried ; much as 
the Roman Conclave has sometimes been satisfied with a pro- 
visional Pope, deemed likely to live for the time necessary to re- 
unite the fractions of the prevailing part}'. 

39. I have said that the Cabinet is essentially the regulator of 
the relations between King, Lords, and Commons ; exercising func- 
tionally the powers of the first, and incorporated, in the persons 
of its members, with the second and the third. It is, therefore, 
itself a great power. But let no one suppose it is the greatest. 
In a balance nicely poised, a small weight may turn the scale ; 
and the helm that directs the ship is not stronger than the ship. 
It is a cardinal axiom of the modern British Constitution, that the 
House of Commons is the greatest of the powers of the State. It 
might, by a base subserviencj', fling itself at the feet of a 
Monarch or a Minister ; it might, in a season of exhaustion, allow 
the slow persistence of the Lords, ever eyeing it as Lancelot was 
eyed by Modred, to invade its just province by baffling its action 
at some time propitious for the purpose. But no Constitution can 
anywhere keep either Sovereign, or Assembly, or nation, true to 
its trust and to itself. All that can be done has been done. The 
Commons are armed with ample powers of self-defence. If they 
use their powers properly, the}' can only be mastered by a recur- 
rence to the people, and the way in which the appeal can succeed 
is by the choice of another House of Commons more agreeable to 
the national temper. Thus the sole appeal from the verdict of 
the House is a rightful appeal to those from whom it received its 
commission. 

40. This superiority in power among the great State forces 
was, in truth, established even before the House of Commons 
became what it now is, representative of the people throughout its 
entire area. In the early part of the century, a large part of its 
members virtually received their mandate from members of the 



52 KIN BEYOND SEA. 

Peerage, or from the Crown, or by the direct action of money on a 
mere handful of individuals, or, as in Scotland for example, from 
constituencies whose limited numbers and upper-class sympathies 
usually shut out popular influences. A real supremacy belonged 
to the House as a whole ; but the forces of which it was com- 
pounded were not all derived from the people, and the aristocratic 
power had found out the secret of asserting itself within the walls 
of the popular chamber, in the dress and through the voices of its 
members. Many persons of gravity and weight saw great danger 
in a measure of change like the first Reform Act, which left it to 
the Lords to assert themselves, thereafter, by an external force, 
instead of through a share in the internal composition of a body 
so formidable. But the result proved that they were sufficiently to 
exercise, through the popular will and choice, the power which 
they had formerly put in action without its sanction, though 
within its proper precinct and with its title falsely inscribed. 

41. The House of Commons is superior, and by far superior, 
in the force of its political attributes, to any other single power in 
the State. But it is watched ; it is criticised ; it is hemmed in 
and about by a multitude of other forces ; the force, first of all, 
of the House of Lords, the force of opinion from day to day, par- 
ticularly of the highly anti- popular opinion of the leisured men of 
the metropolis, who, seated close to the scene of action, wield an 
influence greatl}' in excess of their just claims ; the force of the 
classes and professions ; the just and useful force of the local 
authorities in their various orders and places. Never was the 
great problem more securely solved, which recognises the necessity 
of a paramount power in the body politic to enable it to move, but 
requires for it a depository such that it shall be safe against inva- 
sion, and yet inhibited from aggression. 

42. The old theories of a mixed government, and of the three 
powers, coming down from the age of Cicero, when set by the side 
of the living British Constitution, are cold, crude, and insufficient 
to a degree that makes them deceptive. Take them, for example, 
as represented, fairly enough, by Voltaire : the picture drawn by 
him is for us nothing but a puzzle : — 

"Aux murs de Vestminster on voit paraitre ensemble 
Trois pouvoirs etonnes du noeud qui les rassemble, 
Les deputes du peuple, les grands, et le Roi, 
Divisds d'inter^t, r^unis par la Loi."* 

* Henriade, I. 



KIN BEYOND SEA. 53 

There is here lacking an amalgam, a reconciling power, what may 
be called a clearing-house of political forces, which shall draw 
into itself everything, and shall balance and adjust everything, 
and ascertaining the net result, let it pass on freely for the ful- 
filment of the purposes of the great social union. Like a stout 
buffer-spring, it receives all shocks, and within it their opposing 
elements neutralise one another. This is the function of the 
British Cabinet. It is perhaps the most curious formation in the 
political world of modern times, not for its dignity, but for its 
subtlet} 7 , its elasticity, and its manj'-sided diversity of power. It 
is the complement of the entire system ; a system which appears 
to want nothing but a thorough loyalty in the persons composing 
its several parts, with a reasonable intelligence, to insure its bear- 
ing, without fatal damage, the wear and tear of ages yet to come. 

43. It has taken more than a couple of centuries to bring the 
British Cabinet to its present accuracy and fulness of develop- 
ment ; for the first rudiments of it may sufficiently be discerned 
in the reign of Charles I. Under Charles II it had fairly started 
from its embryo ; and the name is found both in Clarendon and in 
the Diary of Pepys.* It was for a long time without a Min- 
isterial head ; the King was the head. While this arrangement 
subsisted, Constitutional government could be but half established. 
Of the numerous titles of the Revolution of 1688 to respect, not 
the least remarkable is this, that the great families of the country, 
and great powers of the State, made no effort, as they might have 
done, in the hour of its weakness, to aggrandise themselves at 
the expense of the Crown. Nevertheless, for various reasons, 
and among them because of the foreign origin, and absences from 
time to time, of several Sovereigns, the course of events tended 
to give force to the organs of Government actually on the spot, 
and thus to consolidate, and also to uplift, this as yet novel crea- 
tion. So late, however, as the impeachment of Sir Robert Wal- 
pole, his friends thought it expedient to urge on his behalf, in the 
House of Lords, that he had never presumed to constitute himself 
a Prime Minister. 

44. The breaking down of the great offices of State by throw- 
ing them into commission, and last among them of the Lord High 
Treasurership after the time of Harley, Earl of Oxford, tended, 
and may probably have been meant, to prevent or retard the for- 

Vol. v, pp. 94, 95. Ed. London, 1877. 



54 KIN BEYOND SEA. 

mation of a recognised Chiefship in the Ministry ; which even now 
we have not learned to designate by a true English word, though 
the use of the imported phrase "Premier" is at least as old as the 
poetry of Burns. Nor can anything be more curiously char- 
acteristic of the political genius of the people, than the present 
position of this most important official personage. Department- 
ally, he is no more than the first named of five persons, by whom 
jointly the powers of the Lord Treasurership are taken to be ex- 
ercised ; he is not their master, or, otherwise than bjr mere prior- 
ity, their head : and he has no special function or prerogative 
under the formal constitution of the office. He has no official 
rank, except that of Privy Councillor. Eight members of the 
Cabinet, including five Secretaries of State, and several other 
members of the Government, take official precedence of him. 
His rights and duties as head of the Administration are nowhere 
recorded. He is almost, if not altogether, unknown to the Statute 
Law. 

45. Nor is the position of the body, over which he presides, 
less singular than his own. The Cabinet wields, with partial ex- 
ceptions, the Powers of the Privy Council, besides having a stand- 
ing ground in relation to the personal will of the Sovereign, 
far be^yond what the Privy Council ever held or claimed. Yet 
it has no connection with the Privy Council, except that every 
one, on first becoming a member of the Cabinet, is, if not belong- 
ing to it alread3 T , sworn a member of that body. There are other 
sections of the Privy Council, forming regular Committees for 
Education and for Trade. But the Cabinet has not even this 
degree of formal sanction, to sustain its existence. It lives and 
acts simply by understanding, without a single line of written law 
or constitution to determine its relations to the Monarch, or to 
the Parliament, or to the nation ; or the relations of its members 
to one another, or to their head. It sits in the closest secrecy. 
There is no record of its proceedings, nor is there any one to 
hear them, except upon the very rare occasions when some im- 
portant functional, for the most part military or legal, is intro- 
duced, pro hac vice, for the purpose of giving to. it necessary 
information. 

46. Ever}- one of its members acts in no less than three capaci- 
ties : as administrator of a department of State ; as member of 
a legislative chamber ; and as a confidential adviser of the Crown. 
Two at least of them add to those three characters a fourth : for 



KIN BEYOND SEA. 55 

in each House of Parliament it is indispensable that one of the 
principal Ministers should be what is termed its Leader. This is 
an office the most indefinite of all, but not the least important. 
With very little of defined prerogative, the Leader suggests, and 
in a great degree fixes, the course of all principal matters of busi- 
ness, supervises and keeps in harmony the action of his colleagues, 
takes the initiative in matters of ceremonial procedure, and ad- 
vises the House in ever}' difficulty as it arises. The first of these, 
which would be of but secondary consequence where the assembly 
had time enough for all its duties, is of the most utmost weight 
in our overcharged House of Commons, where, notwithstanding 
all its energy and all its diligence, for one thing of consequence 
that is done, five or ten are despairingly postponed. The over- 
weight, again, of the House of Commons is apt, other things 
being equal, to bring its Leader inconveniently near in power to a 
Prime Minister who is a Peer. He can play off the House of 
Commons against his chief; and instances might be cited, though 
the}' are happily most rare, when he has served him very ugly tricks. 

47. The nicest of all the adjustments involved in the working 
of the British Government is that which determines, without for- 
mally defining, the internal relations of the Cabinet. On the one 
hand, while each Minister is an adviser of the Crown, the Cabinet 
is an unity, and none of its members can advise as an individual, 
without, or in opposition actual or presumed to, his colleagues. 
On the other hand, the business of the State is a hundredfold too 
great in volume to allow of the actual passing of the whole under 
the view of the collected Ministry. It is therefore a prime office 
of discretion for each Minister to settle what are the departmental 
acts in which he can presume the concurrence of his colleagues, 
and in what more delicate, or weight}', or peculiar cases, he must 
positively ascertain it. So much for the relation of each Minister 
to the Cabinet ; but here we touch the point which involves 
another relation, perhaps the least known of all, his relation to 
its head. 

48. The head of the British Government is not a Grand Vizier. 
He has no powers, properly so called, over his colleagues : on the 
rare occasions, when a Cabinet determines its course by the votes 
of its members, his vote counts only as one of theirs. But the}' 
are appointed and dismissed by the Sovereign on his advice. In 
a perfectly organised administration, such for example as was that 
of Sir Robert Peel in 1841-6, nothing of great importance is 



56 KIN BEYOND SEA. 

matured, or would even be projected, in any department without his 
personal cognisance ; and any weighty business would commonly 
go to him before being submitted to the Cabinet. He reports to 
the Sovereign its proceedings, and he also has many audiences of 
the august occupant of the Throne. He is bound, in these re- 
ports and audiences, not to counterwork the Cabinet ; not to 
divide it ; not to undermine the position of any of his colleagues 
in the Royal favour. If he departs in any degree from strict ad- 
herence to these rules, and uses his great opportunities to increase 
his own influence, or pursue aims not shared by his colleagues, 
then, unless he is prepared to advise their dismissal, he not only 
departs from rule, but commits an act of treachery and baseness. 
As the Cabinet stands between the Sovereign and the Parliament, 
and is bound to be loyal to both, so he stands between his col- 
leagues and the Sovereign, and is bound to be loyal to both. ' 

49. As a rule, the resignation of the First Minister, as if re- 
moving the bond of cohesion in the Cabinet, has the effect of dis- 
solving it. A conspicuous instance of this was furnished by Sir 
Robert Peel in 1846; when the dissolution of the Administration, 
after it had carried the repeal of the Corn Laws, was understood 
to be due not so much to a united deliberation and decision as to 
his initiative. The resignation of any other Minister only creates 
a vacancy. In certain circumstances, the balance of forces may r 
be so delicate and susceptible that a single resignation will break 
up the Government ; but what is the rule in the one case is the 
rare exception in the other. The Prime Minister has no title to 
override any one of his colleagues in any one of the departments. 
So far as he governs them, unless it is done by trick, which is not 
to be supposed, he governs them by influence only. But upon the 
whole, nowhere in the wide world does so great a substance cast 
so small a shadow ; nowhere is there a man who has so much 
power, with so little to show for it in the way of formal title or 
prerogative. 

50. The slight record that has here been traced may convey but 
a faint idea of an unique creation. And, slight as it is, I believe 
it tells more than, except in the school of British practice, is else- 
where to be learned of a machine so subtly balanced, that it 
seems as though it were moved by something not less delicate and 
slight than the mainspring of a watch. It has not been the off- 
spring of the thought of man. The Cabinet, and all the present 
relations of the Constitutional powers in this country, have grown 



K1H BEYOND SEA. 57 

into their present dimensions,, and settled into their present places, 
not as the fruit of a philosoplry, not in the effort to give effect to 
an abstract principle ; but by the silent action of forces, invisible 
and insensible, the structure has come up into the view of all the 
world. It is, perhaps, the most conspicuous object on the wide 
political horizon ; but it has thus risen, without noise, like the 
temple of Jerusalem. . . 

"No workman steel, no ponderous hammers rung; 
Like some tall palm the stately fabric sprung."* 

51. When men repeat the proverb which teaches us that 
"marriages are made in heaven," what they mean is that, in the 
most fundamental of all social operations, the building up of the 
family, the issues involved in the nuptial contract, lie beyond the 
best exercise of human thought, and the unseen forces of providen- 
tial government make good the defect in our imperfect capacity. 
Even so would it seem to have been in that curious marriage of 
competing influences and powers, which brings about the com- 
posite harmony of the British Constitution. More, it must be 
admitted, than any other, it leaves open doors which lead into 
blind alle} 7 s ; for it presumes, more boldly than any other, the 
good sense and good faith of those who work it. If, unhappily, 
these personages meet together, on the great arena of a nation's 
fortunes, as jockeys meet upon a racecourse, each to urge to the 
uttermost, as against the others, the power of the animal he rides, 
or as counsel in a court, each to procure the victory of his client, 
without respect to any other interest or right ; then this boasted 
Constitution of ours is neither more nor less than a heap of absurd- 
ities. The undoubted competenc}' of each reaches even to the 
paralysis or destruction of the rest. The House of Commons is 
entitled to refuse every shilling of the Supplies. THat House, and 
also the House of Lords, is entitled to refuse its assent to every 
Bill presented to it. The Crown is entitled to make a thousand 
Peers to-day and as many to-morrow ; it may dissolve all and 
every Parliament before it proceeds to business ; may pardon the 
most atrocious crimes ; may declare war against all the world ; 
may conclude treaties involving unlimited responsibilities, and 
even vast expenditure, without the consent, nay without the 

* Heber's 'Palestine.' The word "stately" was in later editions altered by the author 
to "noiseless." 



58 KIN BEYOND SEA. 

knowledge, of Parliament, and this not merely in support or in 
development, but in reversal, of policy already known to and 
sanctioned by the nation. But the assumption is that the deposi- 
taries of power will all respect one another ; will evince a con- 
sciousness that they are working in a common interest for a 
common end ; that they will be possessed, together with not less 
than an average intelligence, of not less than an average sense of 
equity and of the public interest and rights. When these reason- 
able expectations fail, then, it must be admitted, the British Con- 
stitution will be in danger. 

52. Apart from such contingencies, the offspring only of folly 
or of crime, this Constitution is peculiarly liable to subtle 
change. Not only in the long-run, as man changes between 
youth and age, but also, like the human body, with a quotidian 
life, a periodical recurrence of ebbing and flowing tides. Its old 
particles daily run to waste, and give place to new. What is 
hoped among us is, that which has usually been found, that evils 
will become palpable before they have grown to be intolerable. 

53. There cannot, for example, be much doubt among careful 
observers that the great conservator of liberty in all former times, 
namely, the confinement of the power of the purse to the popular 
chamber, has been lamentably weakened in its efficiency of late 
years ; weakened in the House of Commons, and weakened by the 
House of Commons. It might indeed be contended that the House 
of Commons of the present epoch does far more to increase the 
aggregate of public charge than to reduce it. It might even 
be a question whether the public would take benefit if the House 
were either entrusted annually with a great part of the initiative, 
so as to be really responsible to the people for the spending of 
their money ; or else were excluded from part at least of its direct 
action upon expenditure, entrusting to the executive the applica- 
tion of given sums which that executive should have no legal 
power to exceed. 

54. Meantime we of this island are not great political 
philosophers ; and we contend with an earnest, but disproportioned, 
vehemence about changes which are palpable, such as the exten- 
sion of the suffrage, on the redistribution of Parliamentaiy seats, 
neglecting wholly other processes of change which work beneath 
the surface, and in the dark, but which are even more fertile of 
great organic results. The modern English character reflects the 



KIN BEYOND SEA. 69 

English Constitution in this, that it abounds in paradox ; that it 
possesses every strength, but holds it tainted with every weak- 
ness ; that it seems alternately both to rise above and to fall below 
the standard of average humanity ; that there is no allegation of 
praise or blame which, in some one of the aspects of its many- 
sided formation, it does not deserve ; that only in the midst of 
much default, and much transgression, the people of this United 
Kingdom either have heretofore established, or will hereafter 
establish, their title to be reckoned among the children of men, for 
the eldest born of an imperial race. 

55. In this imperfect survey, I have carefully avoided all 
reference to the politics of the clay and to particular topics, re- 
cently opened, which may have undergone a great development 
even before these lines appear in print on the other side of the 
Atlantic. Such reference would, without any countervailing ad- 
vantage, have lowered the strain of these remarks, and would have 
complicated with painful considerations a statement essentially 
impartial and general in its scope. 

56. For the 3 T et weightier reason of incompetency, I have 
avoided the topics of chief present interest in America, including 
that proposal to tamper with the true monetary creed which (as 
we would say) the Tempter lately presented to the nation in the 
Silver Bill. But I will not close this paper without recording my 
conviction that the great acts, and the great forbearances, which 
immediately followed the close of the Civil War form a group 
which will ever be a noble object, in his political retrospect, to the 
impartial historian ; and that, proceeding as they did from the 
free choice and conviction of the people, and founded as they 
were on the very principles of which the multitude is supposed to 
be least tolerant, they have, in doing honour to the United States, 
also rendered a splendid service to the general cause of popular 
government throughout the world.* 

* [In reply to the intended work of Mr. Adams on the Constitution of the United 
States, Mr. Livingstone, under the title of a Colonist of New Jersey, published an Ex- 
amination of the British Constitution, and compared it unfavourably as it had been 
exhibited by Adams, and by Delolme, with the institutions of his own country. In 
this work, of which I have a French translation (London and Paris, 1789), there is not 
the smallest inkling of the action of our political mechanism, such as I have endeav- 
oured to describe it. On this subject I need hardly refer the reader to the valuable 
work of Mr. Bagehot, entitled 'The English Constitution,' or to the Constitutional His- 
tory of Sir T. Erkskine May.— W. E. G., December 1878.] 



IV. 

THE GROWTH OF THE ENGLISH CONSTI- 
TUTION. 



[From E. A. Freeman's "Growth of the English Con- 
stitution," Chap. III]. 

In my two former chapters I have carried my brief sketch of 
the history of the English Constitution down to the great events 
of the seventeenth century. I chose that point as the end of my 
consecutive narrative, because the peculiar characteristic of the 
times which have followed has been that so many and such im- 
portant practical changes have been made without any change in 
the written Law, without any re-enactment of the Law, without 
any fresh declaration of its meaning. The movements and revo- 
lutions of former times, as I have before said, seldom sought any 
acknowledged change in the Law, but rather its more distinct 
enactment, its more careful and honest administration. This was 
the general character of all the great steps in our political history, 
from the da} T when William of Normand} T renewed the Laws of 
Eadward, to the cla} T when William of Orange gave his royal assent 
to the Bill of Rights. But, though each step in our progress took 
the shape, not of the creation of a new right, but of the firmer 
establishment of an old one, yet each step was marked by some 
formal and public act which stands enrolled among the landmarks 
of our progress. Some Charter was granted by the Sovereign, 
some Act of Parliament was passed by the Estates of the Realm, 
setting forth in legal form the nature and measure of the rights 
which it was sought to place on a firmer ground. Since the seven- 
teenth century things have in this respect greatly altered. The 
work of legislation, of strictly constitutional legislation, has never 
ceased ; a long succession of legislative enactments stand out as 
landmarks of political progress no less in more recent than in 
earlier times. But alongside of them there has also been a series 
of political changes, changes of no less moment than those which 



THE GROWTH OF THE ENGLISH CONSTITUTION. 61 

are recorded in the statute-book, which have been made without 
any legislative enactment whatever. A whole code of political 
maxims, universally acknowledged in theorj', universally carried 
out in practice, has grown up, without leaving among the formal 
acts of our legislature any trace of the steps by which it 
grew. Up to the end of the seventeenth centuiy, we may fairly 
say that no distinction could be drawn between the Consti- 
tution and the Law. The prerogative of the Crown, the privilege 
of Parliament, the liberty of the subject, might not always be 
clearly defined on every point. It has indeed been said that those 
three things were all of them things to which in their own na- 
ture no limit could be set. But all three were supposed to rest, 
if not on the direct words of the Statute Law, yet at least on 
that somewhat shadowy yet very practical creation, that mixture 
of genuine ancient traditions and of recent devices of lawj'ers, 
which is known to Englishmen as the Common Law. Any breach 
either of the rights of the Sovereign or of the rights of the 
subject was a legal offence, capable of legal definition and sub- 
jecting the offender to legal penalties. An act which could 
not be brought within the letter either of the Statute or of the 
Common Law would not then have been looked upon as an offence 
at all. If lower courts were too weak to do justice, the High 
Court of Parliament stood ready to do justice even against the 
mightiest offenders. It was armed with weapons fearful and 
rarely used, but none the less regular and legal. It could smite 
by impeachment, b}^. attainder, by the exercise of the greatest 
power of all, the deposition of the reigning King. But men had 
not 3^et reached the more subtle doctrine that there ma} T be offences 
against the Constitution which are no offences against the Law. 
They had not learned that men in high office may have a responsi- 
bility practically felt and acted on, but which no legal enactment 
has defined, and which no legal tribunal can enforce. It had not 
been found out that Parliament itself has a power, now practically 
the highest of its powers, in which it acts neither as a legislature 
nor as a court of justice, but in which it pronounces sentences 
which have none the less practical force because they cany with 
them none of the legal consequences of death, bonds, banishment, 
or confiscation. We now have a whole system of political moral- 
ity, a whole code of precepts for the guidance of public men, 
which will not be found in any page of either the Statute or the 



B2 THE GROWTH OF THE ENGLISH CONSTITUTION, 

Common Law, but which are in practice held hardly less sacred 
than any principle embodied in the Great Charter or in the Petition 
of Right. In short, by the side of our written Law, there has 
grown up an unwritten or conventional Constitution. When an 
Englishman speaks of the conduct of a public man being consti- 
tutional or unconstitutional, he means something wholly different 
from what he means by conduct being legal or illegal. A famous 
vote of the House of Commons, passed on the motion of a great 
statesman, once declared that the then Ministers of the Crown 
did not possess the confidence of the House of Commons, and 
that their continuance in office was therefore at variance with the 
spirit of the Constitution. The truth of such a position, accord- 
ing to the traditional principles on which public men have acted 
for some generations, cannot be disputed ; but it would be in vain 
to seek for any trace of such doctrines in any page of our written 
Law. The proposer of that motion did not mean to charge the 
existing Ministry with any illegal act, with an^y act which could be 
made the subject either of a prosecution in a lower court or of im- 
peachment in the High Court of Parliament itself. He did not 
mean that they, Ministers of the Crown, appointed during the 
pleasure of the Crown, committed any breach of the Law of 
which the Law could take cognizance, by retaining possession of 
their offices till such time as the Crown should think good to dis- 
miss them from those offices. What he meant was that the gen- 
eral course of their policy was one which to a majority of the 
House of Commons did not seem to be wise or beneficial to the 
nation, and that therefore, according to a conventional code as 
well understood and as effectual as the written Law itself, they 
were bound to resign offices of which the House of Commons no 
longer held them to be worthy. The House made no claim to dis- 
miss those Ministers from their offices by any act of its own ; 
it did not even petition the Crown to remove them from their 
offices. It simply spoke its mind on their general conduct, and 
it was held that, when the House had so spoken, it was their 
duty to give way without an} T formal petition, without any formal 
command, on the part either of the House or of the Sovereign. 
The passing by the House of Commons of such a resolution as 
this may perhaps be set down as the formal declaration of a con- 
stitutional principle. But though a formal declaration, it was not 
a legal declaration. It created a precedent for the practical guid- 



THE GROWTH OF THE ENGLISH CONSTITUTION. 63 

ance of future Ministers and future Parliaments, but it neither 
changed the Law nor declared it. It asserted a principle which 
might be appealed to in future debates in the House of Commons, 
but it asserted no principle which could be taken an}' notice of by 
a Judge in any Court of Law. It stands therefore on a wholly dif- 
ferent ground from those enactments which, whether they changed 
the Law or simpl}' declared the Law, had a real legal force, 
capable of being enforced by a legal tribunal. If any officer of 
the Crown should levy a tax without the authority of Parliament, 
if he should enforce martial law without the authority of Parlia- 
ment, he would be guilt}' of a legal crime. But, if he merely 
continues to hold an office conferred by the Crown and from which 
the Crown has not removed him, though he hold in teeth of an}' 
number of votes of censure passed by both Houses of Parliament, 
he is in no way a breaker of the written Law. But the man who 
should so act would be universally held to have trampled under 
foot one of the most undoubted principles of the unwritten but 
universally accepted Constitution. 

The remarkable thing is that, of these two kinds of hypothet- 
ical offences, the latter, whose guilt is purely conventional, is al- 
most as unlikely to happen as the former, whose guilt is a matter 
established by Law. The power of the Law is so firmly estab- 
lished among us that the possibility of breaches of the Law on 
the part of the Crown or its Ministers hardly ever comes into our 
heads. And conduct sinning against the broad lines of the un- 
written Constitution is looked on as almost as unlikely. Political 
men may debate whether such and such a course is or is not con- 
stitutional, just as lawyers may debate whether such a course is 
or is not legal. But the very form of the debate implies that 
there is a Constitution to be observed, just as in the other case it 
implies that there is a Law to be observed. Now this firm estab- 
lishment of a purely unwritten and conventional code is one of 
the most remarkable facts in history. It is plain that it implies 
the firmest possible establishment of the power of the written 
Law as its groundwork. If there were the least fear of breaches 
of the written Law on the part of the Crown or its officers, we 
should be engaged in finding means to getting rid of that more 
serious danger, not in disputing over points arising out of a code 
which has no legal existence. But it is well sometimes to stop 
-and remember how thoroughly conventional the whole of our 



64 THE GROWTH OF THE ENGLISH CONSTITUTION. 

received system is. The received doctrine as to the relations of the 
two Houses of Parliament to one another, the whole theory of 
the position of the body known as the Cabinet and of its chief 
the Prime Minister, every detail in short of the practical working 
of government among us, is a matter belonging wholly to the 
unwritten Constitution and not at all to the written Law. The 
limits of the royal authority are indeed clearly defined by the 
written Law. But I suspect that many people would be amazed 
at the amount of power which the Crown still possesses by Law y 
and at the many things, which in our eyes would seem utterly 
monstrous, but which might jet be done b}~ royal authority with- 
out any law being broken. The law indeed secures us against 
arbitrary legislation, against the repeal of any old laws, or the 
enactment of any new ones, without the consent of both Houses 
of Parliament. But it is the unwritten Constitution alone which 
makes it practically impossible for the Crown to refuse its assent 
to measures which have passed both Houses of Parliament, and 
which in man} r cases makes it almost equally impossible to refuse 
the prayer of an address sent up by one of those Houses only. 
The written Law leaves to the Crown the choice of all its min- 
isters and agents, great and small ; their appointment to office 
and their removal from office, as long as they commit no crime 
which the law can punish, is a matter left to the personal dis- 
cretion of the Sovereign. The unwritten Constitution makes it 
practically impossible for the Sovereign to keep a Minister in 
office whom the House of Commons does not approve, and it 
makes it almost equally impossible to remove from office a Min- 
ister whom tne House of Commons does approve. The written 
Law and the unwritten Constitution alike exempt the Sovereign 
from all ordinary personal responsibility. They both transfer the 
responsibility from the Sovereign himself to his agents and ad- 
visers. But the nature and extent of their responsibilit}- is widely 
different in the eyes of the written Law and in the ej'es of the 
unwritten Constitution. The written Law is satisfied with holding 
that the command of the Sovereign is no excuse for an illegal act> 
and that he who advises the commission of an illegal act by royal 
authority must bear the responsibility from which the Sovereign 
himself is free. The written Law knows nothing of any responsi- 
bility but such as may be enforced either by prosecution in any of 
the ordinary Courts or by impeachment in the High Court of Par- 



THE GROWTH OF THE ENGLISH CONSTITUTION. 65 

Iiament. The unwritten Constitution subjects the agents and 
advisers of the Crown to a responsibility of quite another kind. 
What we understand by the responsibility of Ministers is that 
they are liable to have all their public acts discussed in Parlia- 
ment, not only on the ground of their legal or illegal character, 
but on the vaguest grounds of their general tendency. They may 
be in no danger of prosecution or impeachment ; but they are no 
less bound to bow to other indications of the will of the House of 
Commons ; the unwritten Constitution makes a vote of censure 
as effectual as an impeachment, and in many cases it makes a 
mere refusal to pass a ministerial measure as effectual as a vote of 
censure. The written Law knows nothing of the Cabinet or the 
Prime Minister ; it knows them as members of one or the other 
House of Parliament, as Privy Councillors, as holders each man 
in his own person of certain offices, but, as a collective body 
bound together by a common responsibility, the Law never heard 
of them. But in the eye of the unwritten Constitution the Prime 
Minister and the Cabinet of which he is the head form the main 
feature of our system of government. It is plain at a moment's 
glance that the practical power of the Crown is not now what it 
was in the reign of William the Third or even in that of George 
the Third. But the change is due, far less to changes in the 
written Law than to changes in the unwritten Constitution. The 
Law leaves the powers of the Crown untouched, but the Constitu- 
tion requires that those powers should be exercised by such per- 
sons, and in such a manner, as may be acceptable to a majority 
of the House of Commons. In all these wa}~s, in a manner silent 
and indirect, the Lower House of Parliament, as it is still deemed 
in formal rank, has become the really ruling power in the nation. 
There is no greater contrast than that which exists between the 
humility of its formal dealings with the Crown, and even with 
the Upper House, and the reality of the irresistible power which 
it exercises over both. It is so^conscious of the migluYy force of 
its indirect powers that it no longer cares to claim the direct 
powers which it exercised in former times. There was a time 
when Parliament was directly- consulted on questions of War and 
Peace. There was a time when Parliament claimed directly to 
appoint several of the chief officers of State. There were much 
later times when it was no unusual thing to declare a man in power 
to be a public enemy, or directly to address the Crown for his 



66 THE GROWTH OF THE ENGLISH CONSTITUTION^ 

removal from office and from the ro} T al presence. No such direct 
exercises of parliamentary power are needed now, because the 
whole machinery of government may be changed by the simple 
process of the House refusing to pass a measure on which the 
Minister has made up his mind to stake his official being. 

Into the history of the stages b3 r which this most remark- 
able state of things has been brought about I do not intend 
here to enter. The code of our unwritten Constitution has, 
like all other English things, grown up bit by bit, and, for the 
most part, silently and without any acknowledged author. Yet 
some stages of the development are easily pointed out, and 
thej 7 make important landmarks. The beginning may be placed 
in the reign of William the Third, when we first find anything at 
all like a Ministry in the modern sense. Up to that time the 
servants of the Crown had been servants of the Crown, each 
-man in the personal discharge of his own office. The holder of 
each office owed faithful service to the Crown, and he was withal 
responsible to the Law ; but he stood in no special fellowship 
towards the holder of any other office. Provided he discharged his 
own duties, nothing hindered him from being the personal or 
political enemy of any of his fellow-servants. It was William who 
first saw that, if the King's government was to be carried on, 
there must be at least a general agreement of opinions and aims 
among the King's chief agents in his government. From this 
beginning a system has gradually grown up which binds the chief 
officers of the Crown to work together in at least outward har- 
moiry, to undertake the defence of one another, and on vital 
points to stand and fall together. Another important stage hap- 
pened in much later times, when the King ceased to take a share 
in person in the deliberations of his Cabinet. And I may mark a 
change in language which has happened within my own memory, 
and which, like other changes of language, is certainly not with- 
out its meaning. We now familiarly speak, in Parliament and 
out of Parliament, of the body of Ministers actually in power, 
the body known to the Constitution but wholly unknown to the 
Law, by the name of "the Government." We speak of "Mr. 
Gladstone's Government" or "Mr. Disraeli's Government." I 
can myself remember the time when such a form of words was 
unknown, when "Government" still meant "Government by King, 
Lords, and Commons," and when the body of men who acted as 



THE GROWTH OF THE ENGLISH CONSTITUTION. 67 

th3 King's immediate advisers were spoken of as "Ministers" or 
"the Ministry. " 

This kind of silent, I might say stealthy, growth, has, without 
the help of any legislative enactment, produced that unwritten 
and conventional code of political rules which we speak of as the 
Constitution. This process I have spoken of as being character- 
istic of the days since the Revolution of 1688, as distinguished 
from earlier times. And so it undoubtedly is. At no earlier time 
have so many important changes in constitutional doctrine and 
practice won universal acceptance without being recorded in any 
written enactment. Yet this tendency of later times is, after all, 
only a further development of a tendency which was at work 
from the beginning. It is simply another application of the Eng- 
lishman's love of precedent. The growth of the unwritten Con- 
stitution has much in common with the earlier growth of the 
unwritten Common Law. I have shown in earlier chapters that 
some of the most important principles of our earlier Constitution 
were established silently and by the power of precedent, without 
resting on any known written enactment. If we cannot show 
any Act of Parliament determining the relations in which the 
members of the Cabinet stand to the Crown, to the House of 
Commons, and to one another, neither can we show the Act of 
Parliament which decreed, in opposition to the practice of all 
other nations, that the children of the hereditary Peer should be 
simple Commoners. The real difference is that, in more settled 
times, when Law was fully supreme, it was found that many im- 
portant practical changes might be made without formal changes 
in the Law. It was also found that there is a large class of 
political subjects which can be better dealt with in this wa} T of tacit 
understandings than they can be in the shape of a formal enact- 
ment by Law. We practically understand what is meant by 
Ministers having or not having the confidence of the House of 
Commons ; we practically recognize the cases in which, as not 
having the confidence of the House, they ought to resign office 
and the cases in which they may fairly appeal to the country by a 
dissolution of Parliament. But it would be utterly impossible to 
define such cases beforehand in the terms of an Act of Parliament. 
Or again, the Speaker of the House of Commons is an officer 
known to the Law. The Leader of the House of Commons is a 
person as well known to the House and the country, his functions 



68 THE GROWTH OF THE ENGLISH CONSTITUTION. 

are well understood, as those of the Speaker himself. But of the- 
Leader of the House of Commons the Law knows nothing. It 
would be hopeless to seek to define his duties in any legal form, 
and the House itself has, before now, shrunk from recognizing 
the existence of such a person in any shape of which a Court of 
Law could take notice. 

During a time then which is now not very far short of two hun- 
dred years, the silent and extra-legal growth of our conventional 
Constitution has been at least as important as the actual changes- 
in our written Law. 



STAGES IN THE DEVELOPMENT OF THE 
CABINET. 



[From "Central Government." By H. D. Traill, in the 

"English Citizen Series."] 

It remains to glance briefly at the steps b} T which the Cabinet, 
after it once became recognised as the supreme consultative body, 
developed the precise character, attributes and mutual relations of 
parts, which at present distinguish it. 

It has been said that the first step towards establishing its 
effective parliamentary responsibility was the introduction of the 
King's ministers into Parliament. But it must not be supposed 
that the advantage of this change was immediately recognized by 
those to whom this advantage accrued. On the contrary, the 
policy of William III in this respect was at first regarded with 
jealousy. The House of Commons of that day, which had 
alread} T grown impatient of the number of minor dependents upon 
the Crown who had found their way into its ranks, made several 
legislative attempts to exclude all office-holders from a seat ; and 
finally succeeded in procuring their prospective exclusion b} T in- 
troducing a clause into an Act of 1700, whereby it was provided 
.that, on the accession of the House of Hanover, no person who 
had an office or place of profit under the King, or received a pen- 
sion from the Crown, should be capable of serving as a member 
of the House of Commons. But the event in contemplation did 
not take place till fourteen years after, and before half that period 
had elapsed the advantages of the presence of Cabinet Ministers in 
the Legislature had become so manifest that Parliament repealed 
the exclusory clause of its former enactment, and substituted for 
it the wiser provision that members accepting offices of profit from 
the Crown should simply vacate their seats, but should (with cer- 
tain exceptions not necessary to specify here) be capable of re- 
election by their constituents. 



70 STAGES IN THE DEVELOPMENT OF THE CABINET. 

From this time forth, then, we find the same relations estab- 
lished between Cabinet and Parliament which prevail in our own 
day. But the relations of the members of the Cabinet among 
themselves were at first ver}< different from what now exist, and a 
good many years were destined to pass before things finally 
settled down into their present position. There are three princi- 
pal points in which this process is to be traced. 

1. Political Unanimity.- — It would seem verj T strange to us in 
these days to see politicians of opposite parties sitting in the same 
Cabinet ; yet that practice was, for many years after the establish- 
ment of constitutional government, the rule rather than the ex- 
ception. The precedent created by William III in the selection 
of the first party-ministry was, as we have seen, very soon depart- 
ed from, and was thereafter continually set at nought. The later 
ministries of the same King were of a mixed character ; the minis- 
tries of Anne were partly Whig and partly Tory ; and the political 
unity which prevailed in the Walpole administration was succeeded 
by a return to the old practice under Pulteney. It was not till 
later that it became an admitted political axiom that Cabinets 
should be constructed upon some basis of political union, agreed 
upon by the members composing the same when they accept office 
together. 

2. Unity of Responsibility. — As a consequence of the earlier 
practice of constructing Cabinets of men of different political 
views, it followed that the members of such Cabinets did not and 
could not regard their responsibility to Parliament as one 
and indivisible. The resignation of an important member, 
of even of the Prime Minister, was not regarded as necessi- 
tating the simultaneous retirement of his colleagues. Even as 
late as the fall of Sir Robert Walpole, fifty years after the 
Revolution Settlement (and itself the first instance of resig- 
nation in deference to a hostile parliamentary vote), we find 
the King requesting Walpole's successor, Pulteney, "not to 
distress the Government by making too many changes in 
the midst of a session"; and Pulteney replying that he would 
be satisfied, provided "the main forts of the Government," or, in 
other words, the principal offices of State, were placed in his 
hands. It was not till the displacement of Lord North's ministry 
by that of Lord Rockingham in 1782 that a whole administration, 
with the exception of the Lord Chancellor, was changed by a vote 



STAGES IN THE DEVELOPMENT OF THE CABINET. 71 

of want of confidence passed in the House of Commons. Thence- 
forth, however, the resignation of the head of a Government in 
deference to an adverse vote of the popular Chamber has in- 
variably been accompanied by the resignation of all his colleagues. 
They accept a common responsibility for all his acts of policy, and 
it is understood that a withdrawal of parliamentary confidence 
from him implies its withdrawal from them also. 

3. Concert in Action. — For nearly a centuiw after the Revolu- 
tion, the Cabinet, instead of being the consentaneously acting- 
body which it is at present, was little more than a loose cluster of 
mutually independent ministers, carrying on the business of the 
State in various departments unconnected with each other, and con- 
ducting that business under no other general superintendence than 
that of the Crown. There was no regular concert between minis- 
ters : the head of a department was not bound to inform his 
colleagues, either individually or collectively, of the measures he 
proposed to take ; nor were there any of these periodical Cabinet 
Councils in which, nowada}'S, questions of departmental policy are 
brought to the cognisance, and sometimes referred to the decision, 
of the Cabinet at large. 

The inconveniences of this system were many, but transition 
from it to that which now exists did not become possible until the 
supremacy of the Prime Minister had become an accepted princi- 
ple of our Government. It was to the want of a recognised chief 
that this lack of Concert among the Cabinet was due ; yet for a 
century after the Revolution there was no such recognized chief 
of the Cabinet even in practice ; nor in theory, it may be added, 
is there an}' at the present day. Constitutionally speaking, minis- 
ters are all of equal authority as Privy Councillors, the only 
capacity in which they possess any constitutional authority at all ; 
and such ascendency as Walpole, for instance, for man}' 3-ears 
enjoyed was of a purely personal character — the result of his 
natural capacity for rule. So far indeed was this great parliamen- 
tary leader from claiming any supremacy in virtue of his position, 
that he resented the title of Prime Minister as an imputation, and 
seemed evidently of opinion that such a functionary' would be as 
hateful to the Englishmen of his day as Clarendon declared it to 
be to those of his own time. Nor, though he undoubtedly did 
much to raise that office to the position which it now holds, was he 
far wrong in his estimate of the opinion then prevailing on the 



72 STAGES IN THE DEVELOPMENT OF THE CABINET. 

subject. It was one of the complaints of the peers who moved an 
address to the Crown for his removal, that he had made himself 
"sole minister"'; and though the motion was defeated, a protest 
was afterwards entered in the journals of the House of Lords, 
declaring that "a sole or even a First Minister is an officer un- 
known to the law of Britain, inconsistent with the constitution of 
the country, and destructive of liberty in an} T Government what- 
soever"; and further, that "it plainly appearing to us that Sir 
Robert Walpole has for many years acted as such by taking upon 
himself the chief, if not the sole direction of affairs in the different 
branches of the administration, we could not but esteem it to be 
an indispensable duty to offer our most humble advice to his 
Majesty for the removal of a minister so dangerous to the King 
and the kingdoms." But despite this protest, the office of Prime 
Minister continued gradually to attract to itself that "chief if nbt 
sole direction of affairs " which now belongs to it. The system of 
co-ordinate departmental ministers was maintained throughout the 
first twenty years of his reign by George III for his own pur- 
poses : he "divided" in order to "govern"; but on the accession 
of the younger Pitt to power, the King w r as content to hand over 
to him the general superintending authority, which he himself had 
hitherto so obstinately struggled to reserve to the Crown. The 
supremacy which this statesman successfully asserted over his 
colleagues has ever since been the acknowledged right of the First 
Minister of the Crown ; and the Constitution, as now practically 
interpreted, may be said to proceed uniformly upon the principle 
that power and responsibility should be concentrated in the hands 
of some one man who enjoys the confidence of the country and the 
majority in Parliament, and whose unchallenged authority is 
necessary to secure consistenc}' in policy and vigour in ad- 
ministration. 

The authority and functions of the Cabinet, and the mutual re- 
lations of its component members, are points of so much impor- 
tance to our present subject, and the history of this body is so 
essentially the history of modern executive government in Eng- 
land, that it may be well to recapitulate the successive stages in 
its development, as traced in the foregoing pages. 

(1.) First, then, we find the Cabinet appearing in the shape of 
a small informal, irregular Camarilla, selected at the pleasure of 
the Sovereign from the larger body of the Privy Council, consulted 



STAGES IN THE DEVELOPMENT OF THE CABINET. i6 

by and privately advising the Crown, but with no power to take 
any resolutions of State, or perform any act of Government with- 
out the assent of the Privy Council, and not as yet even commonly 
known by its present name. This was its condition anterior to 
the reign of Charles I. 

(2) Then succeeds a second period during which this Council 
of advice obtains its distinctive title of Cabinet, but without 
acquiring any recognized status, or permanently displacing the 
Privy Council from its position of de facto as well as de jure the 
only authoritative body of advisers of the Crown. (Reign of 
Charles I and Charles II, the latter of whom governed during a 
part of his reign by means of a Cabinet, and towards its close 
through a "reconstructed" Privy Council.) 

(3) A third period, commencing with the formation by William 
III of the first ministiy, approaching to the modern type. The 
Cabinet, though still remaining, as it remains to this da} T , unknown 
to the Constitution, has now become de facto, though not de jure, 
the real and sole supreme consultative council and executive 
authority in the State. It is still, however, regarded with 
jealousy, and the full realisation of the modern constitutional 
theory of ministerial responsibility, b}* the admission of its mem- 
bers to a seat in Parliament, is only b}^ degrees effected. 

(4) Finally, towards the^close of the eighteenth century, the 
political conception of the Cabinet as a body, — necessarily con- 
sisting (a) of members of the Legislature (6) of the same political 
views, and chosen from the party possessing a majority in the 
House of Commons ; (c) prosecuting a concerted policy ; (d) 
under a common responsibility to be signified by collective resig- 
nation in the event of parliamentaiy censure ; and (e) acknowl- 
edging a common subordination to one chief minister, — took 
definitive shape in our modern theory of the Constitution, and so 
remains to the present day. 

The attention of the reader has already been called to the 
development of the doctrine of collective ministerial responsibility, 
and to its constitutional importance ; but it now becomes necessar}- 
to note the qualifications to which it is subject. The soundness of 
the general principle is of course obvious. It is clear enough that 
so long as it remained possible for a ministry to evade parliament- 
ary condemnation by "throwing overboard" some unlucky col- 



74 STAGES IN THE DEVELOPMENT OF THE CABINET. 

league, irrespectively of the question whether his acts were or 
were not in reason and in principle their own acts, the control of 
Parliament could never be effectively exercised. 

"The essence of responsible government," it has been said by 
an eminent English statesman,* "is that mutual bond of respon- 
sibility one for another wherein a government acting by party go 
together, frame their measures in concert, and where, if one mem- 
ber falls to the ground, the others almost, as a matter of course, 
fall with him." On the other hand, it would be manifestly as in- 
convenient as unjust to hold a Government collectively respon- 
sible for every administrative blunder committed by an indiscreet 
or incompetent minister. The rule in such matters appears to be 
this : that the wrongful acts of a minister in matters peculiarly 
concerning his own department do not involve the Cabinet at large 
in any parliamentary censure passed upon such acts, unless (}) 
they have either voluntarily assumed a share of the responsibility, 
or (2) are proved, as a matter of fact, to have been implicated in 
the acts censured. But in cases where the act of an individual 
minister, though departmental in its nature, is in such consonance 
with the general policy of the Government that they feel it im- 
possible to repudiate it ; or in cases where the retention of such 
minister in the Cabinet is deemed essential to its existence, and 
an object to be secured at any cost ; or, lastly, in cases where the 
act is only departmental in form, and is really but a step in the 
execution of a plan of action already resolved upon by the Cabinet 
at large ; — in all these cases the responsibilit} T becomes necessarily 
corporate, and ministiy and minister must stand or fall together. 
******** * 

Lastfv, as to the particular measures by which Parliament exer- 
cises its powers of calling ministers to account : These divide 
themselves into ordinary and extraordinary. The ordinary form 
of procedure resorted to by Parliament against offending ministers 
is that of censure and dismissal from office ; the extraordinary is 
that of "impeachment" by the Commons at the bar of the House 
of Lords. In later times the former has been found sufficient, and 
it has been the long-settled practice to regard the disapprobation 
of Parliament and the loss of power as punishment sufficient for 
all errors of administration committed in good faith and without 

* The late Lord Derby. 



STAGES IN THE DEVELOPMENT OF THE CABINET. 75 

suspicion of corrupt or treasonable motive on the part of the erring 
ministers. It is indeed nearly a century and a half since the last 
attempt was made to impeach a minister for merety pursuing g, 
policy considered mischievous b\ T the dominant party in the House 
of Commons for the time being ; but the much later case of Lord 
Melville's impeachment for alleged malversation in office shows 
the indisposition of the House to part with this means of punish- 
ing grave and conscious violations of ministerial duty ; and it is 
not by any means impossible that a detected act of corruption on 
the part of a minister might, even in these days, expose him to a 
parliamentary impeachment. Indeed, if it were beyond the reach 
of the ordinary law, it would have to be so punished, unless the 
offender were to be allowed entire impunit}' ; and this considera- 
tion, indeed, was the real origin of the process. "The times in 
which its exercise was needed were those in which the people were 
jealous of the Crown, when Parliament had less control over pre- 
rogative, when courts of justice w r ere impure, and when, instead 
of vindicating the law, the Crown and its officers resisted its 
execution, and screened political offenders from justice. But the 
limitations of prerogative, the immediate responsibility of minis- 
ters to Parliament, the vigilance and activity of that body in scru- 
tinising the actions of public men, the settled administration of 
the law, and the direct influence of Parliament over courts of 
justice, which are at the same time independent of the Crown, 
have prevented the consummation of those crimes which impeach- 
ments were designed to punish."* 

Parliamentaiy censure of the penal kind, — that, namely, which 
is followed of necessity by loss of office, — can be pronounced 
only through the House of Commons. A vote of the Upper 
House in disapproval of ministerial acts may, and indeed must, 
carr} T with it considerable moral weight ; circumstances may be 
conceived in which its effect might so damage and weaken an. ad- 
ministration as to lead ultimately to its downfall ; but it does not 
amount to "censure" in the constitutional sense of the word. 
Nothing short of a declared withdrawal of the confidence of the 
popular Chamber imposes any constitutional obligation upon 
ministers to resign their offices. This withdrawal of confidence 
ma3 T be signified either by a formal resolution expressive of 
the fact, or b} T a vote conveying disapproval of certain specific 

* May, Law of Parliament, p. 374, 



76 STAGES IN THE DEVELOPMENT OF THE CABINET. 

acts or omissions on the part of ministers or by the rejection 
of legislative measures of a certain character introduced by 
ministers. 

The first two cases explain themselves, and with regard to the 
third — which is much the most usual method of pronouncing par- 
liamentary censure — it is only necessary to note the qualifications 
attached to it. - Not every rejection of a ministerial bill by the 
House of Commons, not even the rejection of an important bill by 
them, is regarded as equivalent to, or as intended to convey, a 
declaration of parliamentary censure. A mere defeat, or even a 
series of defeats, in the House of Commons upon isolated proposals 
would not entail the resignation of a Government which had other- 
wise any ground for believing that its general policy still had the 
approval of Parliament ; nor would the liberal amendment and 
alteration of measures introduced by ministers of necessity entail 
their resignation. But if a Government has declared that they 
regard the passing of a particular measure in a certain shape as a 
matter of vital importance, the rejection of their advice by the 
Legislature is tantamount to a vote of want of confidence, and; 
must compel them either to resign or to advise the Sovereign to 
dissolve Parliament and refer the question to the country. The 
circumstances in which this advice may be legitimately tendered 
to the Crown are of various kinds, but the consideration of them 
belongs to another branch of the subject. 



VI. 

THE TREASURY.— THE BUDGET, 



[From "Central Government." By H. D. Traill, in the 
English Citizen Series."] 

It has been pointed out in the previous chapter that just as "the 
Cabinet" has no recognized legal existence, so there is no such 
official known to the language of constitutional law as a "Prime 
Minister." Supreme as is the authority which the so-called 
"Premier" has in course of time established over his colleagues, 
and complete as is their subordination to him, he is in theory only 
one among other ministers of the Crown, and his sole official title 
is derived from the department over which he nominally presides. 
This department is nowadays the Treasury, and the office of First 
Lord of the Treasury has been held b}' the Prime Minister, either 
alone or in conjunction with another, ever since the year 1806. 
His position, however, in relation to the internal economy of this 
department is rather of honorary president than of working 
chief; and he is usually too much occupied in considering ques- 
tions of the general administrative and legislative policy of the 
country to have time to attend to -the departmental business of the 
office. This business is principally transacted b} T the other mem- 
bers of the Treasury Board, an institution to whose historical 
origin it will here be convenient to devote a few words. 

The full official description of the persons who constitute this 
Board is that of "Lords Commissioners for executing the office of 
Lord High Treasurer," the said persons being the First Lord of 
the Treasury, the Chancellor of the Exchequer, and three other 
officials known as "Junior Lords." 

The Lord High Treasurer was anciently the sole head of the 
Treasury, and the most powerful minister in England. For more 
than a century and a half, however, this high office has been 
placed, as it is called, "in commission." The Duke of Shrewsbury 
had been appointed Lord High Treasurer by Queen Anne a day or 
two before her death ; but George I, a few months after his 



78 THE TREASURY. — THE BUDGET. 

accession, nominated Lord Halifax and four other persons "Lords 
Commissioners for executing the office of Lord High Treasurer," 
and the office has continued in commission ever since. The 
Treasury, however, has undergone the same sort of centralizing 
process as the Cabinet ; for while the Commissioners appointed 
in earlier times for the execution of this office were, it would seem, 
of co-ordinate authorit}*, and nominated by the Crown, they have 
ever since 1715 been appointed by, dependent upon, and subordi- 
nate to, the First Lord. For a considerable time, however, the}* 
continued to take a real and active part in the administrative 
business of the department ; and it was only by degress that their 
offices declined into the virtual sinecures which (in a departmental 
though by no means in a parliamentary sense) the}' have now 
become. The Treasury is still a board of commissioners in name, 
and the patent under which the members of the Board are 1 ap- 
pointed still represents them as being of equal authority, with 
powers to any two or more of them to discharge the functions of 
the whole. But the Treasuiy has long since ceased to be a Board 
in anj'thing but name : it is now practicall}* a department pre- 
sided over by a single head, the Chancellor of the Exchequer. 
******** * 

We have now to trace the change b} T which this minister has 
gradually concentrated the collective authority of the Treasury 
Board in his own hands. Originally, when the business of the 
Treasury was much smaller than it is at present, it was reall}' 
transacted by the Board in presence of the Sovereign. The First 
Lord, the Chancellor of the Exchequer, and the Junior Lords, 
used to sit at the table ; the secretaries attended with their 
papers, which they read, and the Sovereign and the Lords gave 
their opinions thereon, the secretaries taking notes of the 
proceedings, which were afterwards drawn up in the shape 
of minutes and read at the next Board meeting. The in- 
crease of business, however, during the later }*ears of the last cen- 
tury rendered it impossible to dispose of the business of the 
Treasury in this way ; and it then came to be transacted on the 
principle of individual responsibility. Papers were still read and 
passed at Board meetings, to preserve regularity and to comply 
with the directions of certain acts of Parliament ; but the Board 
soon ceased to be a reality. The business was transacted by the 
junior members, the secretaries, and the permanent officials, under 
responsibility to the Chancellor of the Exchequer and the First 



THE TREASURY. — THE BUDGET. 79 

Lord of the Treasury. Then after a time these functionaries 
ceased to meet the Board, except on extraordinary occasions ; and 
some thirty years ago the Board itself ceased to meet. The 
Junior Lords of the Treasury are virtually set aside, and have no 
regular departmental duty to perform, except of a mere routine 
description, such as signing documents for which their signature 
is legally necessary ; and the real business of the department is 
transacted by the secretary and the permanent officials, under the 
direction and control of the Chancellor of the Exchequer. 

It was the ancient dut}~ of the Lord High Treasurer, or of the 
commissioners for executing his office, to kw provide and take care 
of the King's profit" ; and the Treasury, with the Chancellor of 
the Exchequer at its head, discharges, as the successor to this 
dut}', exceedingly extensive and important functions. 

They are : — 

(1) To provide the means of meeting the necessary yearly ex- 
penditure on the militaiy, naval, and civil services of the nation. 

(2) To exercise a certain control and supervision (the nature 
of which will be shortly indicated) over the amount and details of 
that expenditure. 

(3) To revise and regulate the internal or domestic expen- 
diture of the other public offices of the State ; and generally to 
exercise such a superintendent authority 7 over the financial man- 
agement of these offices as is implied in these revisory and regula- 
tive powers. 

(4) To decide upon appeals from its own subordinate depart- 
ments, in all cases arising out of the receipt of revenue ; and 

(5) To determine as to the remission of fines and forfeitures 
to the Crown. 

It is, however, the first of these duties — that, namely, of intro- 
ducing what is called '-The Budget" — with which the name aud 
office of the Chancellor of the Exchequer is most familiarly asso- 
ciated ; and it will be here convenient to give a brief explanation 
of this important constitutional proceeding. 

But before considering the mode of raising the funds required 
for defraying the annual expenditure of the State, it would be only 
natural to inquire how the amount of that expenditure is deter- 
mined. The two operations, though both alike of a financial 
nature, are obviously quite distinct ; and though each is performed 
by the whole House of Commons, the Committee into which the 



#0 THE TREASURY. THE BUDGET. 

House resolves itself for each purpose is described in each case by 
a distinct name. It is in what is called "Committee of Supply" - 
that the House determines what sums of money are sufficient to 
meet the annual expenditure of the State, and votes them as 
"supplies" to the Crown for employment upon that object; it is 
in Committee of kk Ways and Means" that it considers and 
approves the means suggested for raising, by taxation, or other- 
wise, the sums required. 

The first step in the former process is the "presentation of 
estimates." Shortly after the meeting of Parliament and the 
opening of the Committee of Supply, the ministers in charge of the 
naval and military services lay before the Committee their re- 
spective statements of the sums which will be required for the 
maintenance of those services ; and somewhat later in the session 
a common estimate for the various civil services is submitted also. 
These estimates are presented to the House, it should be noted T 
on the collective responsibility of the whole Cabinet. It is the duty 
of the heads of the respective departments to which they relate to 
explain such matters to the Committee as ma}' satisfy them of the 
correctness of the calculations relied upon, and formally to move- 
that the sum required for each item of expenditure should be 
voted ; but the Cabinet, as a whole, is responsible for the demand. 
Indeed, the Army and Navy Estimates have, as a rule, been con- 
sidered and settled in Cabinet Council before being submitted to 
the House ; and the collective responsibility of the ministry is in 
this case, therefore, not technical merely, but substantial. But 
the Chancellor of the Exchequer, over and above his share in this 
common responsibilit3 T , has in his Departmental capacity a special 
concern in this matter. It is his duty to satisfy himself that the 
estimates have been framed with due regard to economy ; and 
though the heads of the military and naval departments must 
necessarily have entire freedom of judgment as to the needs of 
their respective services, it would still be the dut}^ of the Chan- 
cellor of the Exchequer to disallow any expenditure which he 
might think unnecessary or inordinate, and in the event, which 
rarely happens, of an item being pressed, in the face of the' ob- 
jection of the Treasury, to oppose it in the Cabinet. 

In order to a more effective exercise of this control, a circular 
is, in the autumn of every } T ear, addressed by the Treasuiy to the 
various departments of the Government, including the naval and 



THE TREASURY. THE BUDGET. 81 

military establishments, requesting that, b} T a certain date, an 
estimate of the sums required by the particular department for the 
service of the current year ma} T be prepared for the information of 
the Treasury. The estimates are called for thus early in order to 
afford time to the Chancellor to examine them thoroughly, with 
two distinct objects in view, — one, that of keeping down expen- 
diture within legitimate limits, and the other, that of ascertaining 
as early as may be how much expenditure within these limits it 
will be his duty to provide for. 

Suppose, then, that the estimates for the various services have 
been duly examined and approved, the Chancellor of the Excheq- 
uer has now to consider how the demands of these estimates are 
to be met. The first question, of course, is whether the income of 
the State for the ensuing year will be sufficient to cover them, or, 
if not, how far it will fall short of their amount. The next. step, 
therefore, is to ascertain what the next year's income of the 
State may be expected to amount to ; and with this object the 
Chancellor of the Exchequer obtains from the permanent heads of 
the revenue departments their estimates of the public revenue for 
the ensuing year upon the hypothesis that taxation will remain 
unchanged. 

Let us now first assume that these estimates, on a comparison 
with the estimates of expenditure, are found to exceed them by a 
more or less considerable sum. In this case there is said to be a 
surplus — a word which, it must be noted, is as a rule used in a 
prospective sense in finance, and as meaning not the national bal- 
ance in hand after payment of national charges, but simply excess 
of estimated revenue over estimated expenditure. Should this 
excess of revenue be considerable, the Government will, as a rule, 
decide that the greater portion of such excess shall not be collect- 
ed at all, but that taxation to the extent of that amount shall be 
remitted. In such a* case it would be for the Chancellor of the 
Exchequer, in the first instance, to make choice of the particular 
imposts which he considers should be abolished or reduced ; and 
when his selection has been approved by the Cabinet, all is read}' 
for the introduction of his budget. Accordingly, at or soon 
before the close of the financial year (the national accounts being- 
made up on the 5th of April), he submits to the House of Com- 
mons a general statement of the results of the financial measures 
of the preceding session ; he gives a general view of the expected 



82 THE TREASURY. THE BUDGET. 

income and expenditure for the ensuing j'ear ; and having thus 
made the House acquainted with the amount of the expected sur- 
plus at his disposal, he indicates the particular remissions of 
taxation b}' which he proposes to dispose of it. These proposals, 
after all questions which ma}' be put with respect to them by 
members of the House have been answered by the Chancellor of 
the Exchequer, are then embodied in resolutions ; and these reso- 
lutions, when afterwards reported to the House, form the ground- 
work of bills for accomplishing the contemplated changes. The 
House can, of course, either express disapproval of the budget as 
a whole, or oppose, and perhaps reject, an}' one of the resolutions 
which accompany it. Ministers have, on not a few occasions, 
suffered defeats of this kind ; and it depends upon circumstances, 
which will be briefly considered hereafter, whether in such a case 
the} T would deem it proper to submit to their defeat, and withdraw 
or modify their condemned proposals, or treat the adverse vote 
of the House as a withdrawal of its confidence, and resign their 
offices. 

If, on the other hand, a comparison of the estimates of revenue 
and expenditure discloses an excess of the latter over the former, 
the Chancellor of the Exchequer will, of course, have not a surplus 
to dispose of but a deficit to make good ; and he will have to de- 
vise means of meeting it, whether b} T loan or by increased taxation. 
If the latter expedient is, as usually happens, adopted, he will have 
to consider what existing taxes should be augmented, or what new 
taxes imposed ; and, after obtaining the approval of the Cabinet to 
his proposals, he will submit them as before, along with his general 
financial statement, to the House of Commons. There they will 
be subjected to the same criticism, and, if not regarded as a satis- 
factory mode of meeting the deficit, they may be set aside in favour 
of alternative schemes, or they may be simply rejected out of hand. 
The House is in no way bound to grant the demands of a Govern- 
ment for the means of meeting a deficiency, although, of course, 
the unqualified refusal of such a demand, without the suggestion 
of any alternative, would be equivalent to a vote of "no con- 
fidence" of the most emphatic kind. 

Should the national accounts disclose a surplus of only trifling 
amount, it would probably be left undisposed of, as a margin 
against possible error in the estimates of expenditure or of 
revenue ; and in this case, as also in the case of an absolute 



THE TREASURY. THE BUDGET. 83 

equilibrium being established between expenditure and revenue, 
the duty of the Chancellor of the Exchequer will be confined to 
the proposal of such readjustments of taxation — such transfers of 
taxes, that is to say, from one class of tax-payers to another — as 
he ma}' conceive to tend to a more equitable distribution of public 
burdens, or to conduce, b} T the relief of particular industries, to 
the increased prosperity of the country. But in all cases where 
the surplus is considerable, it would, as a general rule, be the 
duty of the Chancellor of the Exchequer to dispose of it, and of 
the House of Commons to see that he does so ; for the effect of a 
budget is to satisfy Parliament not only that the public income to 
be raised for the current financial year will be sufficient, but that 
it will be no more than sufficient, to meet the expenditure which 
the Government propose to incur within that year. To raise more 
revenue than is required is simply to lock up in the Exchequer so 
much mone}' that might, to the greater advantage of the country, 
have been left to "fructify," as the phrase is, "in the pockets of 
the people." 

Thus far, however, we have been dealing only with proposals, — 
with proposals on the one hand to spend so much money, and on 
the other hand to raise so much money ; and we have now to con- 
sider the process b} T which the actual payments into and out of 
the National Exchequer are effected i The local details of the 
collection of revenue are obviously foreign to the subject of this 
volume, and the public moneys cannot be held to come within the 
scope of its inquiries until they are actually lodged in the coffers 
of the Central Government. These mone}'S which consist partly 
or the hereditaiy revenues of the Crown (now surrendered to the 
control of Parliament in exchange for the Civil List) , and partly 
of the proceeds of taxation, are nowadays all alike paid into the 
Banks of England and Ireland "to the account of the Excheq- 
uer," and constitute one common fund known as the Consolidated 
Fund. It is out of this fund that the pa3'ments for the services of 
the countiy are, upon proper authority, made ; and the nature and 
conditions of this authorit}' next claim consideration. 

It is of two kinds : one of a permanent character, and the 
other dependent upon periodical exercise of the power of Par- 
liament ; and more than half of the money is dealt with under 
authority of the former kind. About three-fifths of the whole 
annual expenditure is made under the express direction of Acts of 



84 THE TREASURY. THE BUDGET. 

Parliament, and these payments can be made, therefore, without 
the sanction of a special parliamentary vote. The interest on the 
National debt, the sums payable for the Civil List, annuities to 
the royal family, pensions, certain salaries and allowances, the 
expenses of the courts of justice, — these, together with certain 
other charges, unnecessary to enumerate, are imposed by perma- 
nent statute upon the Consolidated Fund ; and these statutes are r 
of course, a sufficient authority to the custodians of the Fund to 
make the several paj'inents required. The principle represented 
in this procedure is that the security of the public creditor, the 
dignity of the Crown, the independence of judges, etc., are objects 
of public concern ; and that these objects would be imperf ectty 
attained if the payments above enumerated were subjected to the 
uncertainty of an annual vote. 

But as regards the remaining two-fifths of the expenditure, which 
includes interest on the unfunded debt, the maintenance of the 
naval and military forces, the expenses of the collection of 
revenue, and the charges of the various civil services, no pa}- 
ments can be made under these several heads except on the 
authority of express parliamentary votes. 

The process, however, by which this authority is obtained is a 
somewhat complex one, and the various forms and securities by 
which the outgoings of the public Exchequer are constitutionally 
regulated are elaborate enough to require a few words of detailed 
explanation. 

The mode in which the sanction of Parliament is obtained for 
the various proposals of expenditure submitted by ministers in 
their estimates has already been explained in the brief account 
given above of the proceedings in Committee of Supply ; but 
another process is necessary before this parliamentary sanction 
can be made practically available by the Executive. A vote in 
Supply is a mere resolution of the House of Commons that certain 
sums of national mone}" shall be appropriated to certain national 
purposes ; it gives no authority to the Government to draw upon 
the Exchequer, nor to the Custodian of the revenues — the Comp- 
troller of the Exchequer — to make any payments or advances 
thereout. Such a resolution merely authorises the expenditure, 
but does not provide the means of making it. To make this 
provision the functions of another committee — the Committee of 
Ways and Means — require to be called into play. Accordingly, 



THE TREASURE THE BUDGET. 85 

as soon as the votes on account of the great services have been 
"reported," a resolution is proposed in Committee of Wa}'s and 
Means for a general grant out of the Consolidated Fund "towards 
making good the supply granted to Her Majesty" ; and the prin- 
ciple of parliamentary control is so strictly respected that the 
grant is never allowed to exceed the amount of the votes actually 
passed in Committee of Supply. Even then, however, the pro- 
cess is not constitutionally complete, for the Constitution requires 
the assent of the Crowm and the House of Lords to the appropria- 
tion of public moneys ; and the resolution of the Committee of 
Ways and Means has therefore to be embodied in a Bill, which 
passes through its various stages, and at a very early period of 
the session receives the royal assent ; at which time, but not 
before, the Treasury acquires full power to direct an issue out of 
the Consolidated Fund to meet the payments authorised by the 
votes in Supply, or, if that Fund be insufficient, to raise by 
Exchequer Bills, on the security of the Fund, the money required 
to defray the expenditure sanctioned by such votes. 

The control of Parliament over the expenditure of public 
money being thus rendered as complete in detail as it is in gross, 
it is natural to inquire how the exercise of so rigorous and minute 
a restraint can be made consistent with the always varying needs 
and often recurring emergencies of the public service. How, it 
will be asked, is a Government to provide for expenditure sud- 
denly necessitated by cases like these, and the necessity for which 
may arise at a time when Parliament is not in session, and there 
is consequently no possibility of obtaining even the sanction of a 
vote in Supply, to say nothing of the more precise authority of 
an Appropriation Act ? The answer to this is, that the Legis- 
lature has already created certain permanent funds applicable to 
such contingencies, and the Executive is invested with permanent 
statutory powers of resorting to them. To meet the needs of the 
public service, more particularly in the colonies and at the various 
naval and military stations of the empire, the Government is 
authorised to make advances, as occasion arises, out of a fund 
called the Treasury Chest Fund, which by the Act 24 and 25 Vict, 
c. 127, is limited to £1,300,000, and assigned for employment by 
the Treasurjr as "a banking fund for facilitating remittances, and 
for temporary advances for public and colonial services, to be 



86 THE TREASURY. — TOE BUDGET, 

repaid out of the moneys appropriated by Parliament, or other- 
wise applicable to those services." There is also another and 
smaller fund, called the Civil Contingencies Fund, limited to 
£120,000, on which the Treasury is empowered to draw from time 
to time to defray new and unforeseen expenditure for civil services 
at-home, for which no votes had been taken, or to meet deficien- 
cies on ordinary votes. Every advance made from these funds 
must, however, be repaid out of the parliamentary votes passed 
in the ensuing year to provide for the services for which such 
advances had been made ; and no expenditure whatever is allowed 
to become a final charge upon these funds, which are thus, after 
each successive call is made upon them, restored to their statutory 
maximum. 

The restraints and privileges which have been discussed in the 
foregoing pages have reference to the Treasury only in its capacity 
as superintendent of the actual work of administration, and for 
that purpose an expender of public money ; but the Treasury 
exercises, it has been said, a function of scarcely less importance 
than that of directing the national outlay, in scrutinising, check- 
ing, and confining within economical bounds, the domestic expend- 
iture, as it may be called, of the various departments. The 
Chancellor of the Exchequer, in other words, is not only the head, 
so to speak, of the national counting-house, — he is the house- 
keeper of the national household. The control of the Treasury 
over the other departments of State rests not only upon long 
usage and tradition, but on express recommendations of Parlia- 
ment, and indeed on the economical principle that there ought to 
be one authority responsible to Parliament for every act of in- 
ternal departmental expenditure. Accordingly we find a constant 
and minute supervision exercised in the name of "My Lords" of 
the Treasury over all the pecuniary incidents of the management 
of the various public offices. A "minute of the Treasury" is 
required for the sanction of any changes in the personnel of their 
working staff, or any redistribution of their duties which may 
involve the outlay of public money ; and it is the custom to 
append to the annual estimates any correspondence which may 
have taken place between the Treasury and other departments 
upon any questions connected either with their internal or external 
expenditure which may be deemed sufficiently important to be 
brought under the notice of Parliament. 



THE TREASURY. THE BUDGET. 87 

The parliamentary responsibility of this department is, as 
becomes its importance, provided for with exceptional complete- 
ness. Its working chief, as has been said, belongs as a matter 
of course to the Lower House of Parliament, and can therefore 
be called to account by interrogation or motion with respect to all 
matters of Treasury concern, which, as we know, include a variety 
of questions that may arise in an}' of the other departments of 
the State, and may in fact be said to cover the whole sphere of 
the discipline and econonry of the Executive Government. And 
not only does the invariable presence of the Chancellor of the 
Exchequer in the House of Commons make the representation of 
this department peculiarly direct, but, through the Secretary of 
the Treasur} 7 , and, with respect to certain departmental matters, 
through the Junior Lords, the House possesses peculiar facilities 
of ascertaining and expressing its opinion upon the details of 
Treasury- administration. This is especially the case as regards 
the Secretary of the Treasuiy, whose functions have greatly 
increased of late years, and whose office has now become perhaps 
the most important of any not included in the Cabinet. These 
officials, however, do not of course relieve their chief of any 
share of his official responsibility ; nor would they do so, indeed, 
if they constituted the sole representatives of their department in 
the popular House, instead of being mere attendants therein upon 
their chief. 

A word should be said here as to the constitutional position of 
such officials in general. An Under Secretaiy or other subor- 
dinate minister must be regarded as being merely the mouthpiece 
of his superior officer, and as only responsible for giving effect to 
the instructions of his chief, and for personal good behaviour. 
The political head of the department is alone responsible to Par- 
liament. This proposition is substantially true, even in those 
cases in which an Under Secretary represents his department in 
one House, while his chief sits in another. It is true that an 
Under Secretary or a Vice-President, who is in this position, and 
is required to take a prominent part in public affairs, ;t is naturally 
supposed to have a share in the government of the department, 
and cannot absolve himself from a certain modified responsibility 
in regard to it" ; but a "much greater responsibility attaches to 
the departmental chief whose directions the subordinate officer is 
obliged to carry out, and whose authority is supreme." On the 



88 THE TREASURY. THE BUDGET. 

whole, in short, it ma}' be said with practical accuracy, that the 
head of the department is "alone" responsible ; and that however 
influential a position his subordinate might occupy in virtue of his 
representing that department in the House of Commons, it is 
doubtful whether he could in any case become constitutionally 
bound (although, of course, he might personally prefer) to accept 
a parliamentary censure on a point of departmental policy as 
applicable to himself as well as his chief. That such censure can 
ever apply to himself alone, and to the exclusion of his chief, 
may be confidently pronounced impossible ; the only (apparent) 
instance to the contrary will be dealt with in its proper place. 

The position of these subordinate officials must be borne in 
mind in noting what may be said hereafter on the subject of 
departmental responsibility. In cases where the head of a depart- 
ment is usually or frequently a member of the House of Lords, 
the parliamentary responsibility of that department is in common 
parlance spoken of as being provided for by the presence of this 
or the other departmental official in the House of Commons. Nor 
does there seem an} r objection to the expression, so long as we 
take care not to forget that such officials represent not the prin- 
ciple of responsibility, but an incidental part of the machinery 
for giving effect to that principle ; that their position is that of 
mere intermediaries between the chiefs of departments and the 
popular assembly to which these chiefs are responsible, keeping 
the House duly informed of all that the minister has done, 
explaining and justifying his proceedings when necessary, and 
receiving vicariously the censure or the approval which the House 
thinks proper to pronounce thereon. 

In the case, then, of the internal administration of the Treasury, 
whether in its dealings with its subordinate departments of rev- 
enue, or as regards the exercise of its economical supervision over 
the other offices of the State, the sole responsibility rests upon 
the Chancellor of the Exchequer. In respect of the general 
financial policy proposed by this official, he shares responsibility, 
as has been said, with the Cabinet at large. And as regards this 
policy, it should here be noted that a somewhat wider latitude of 
submission to parliamentary disapproval, without resigning office, 
is allowed to ministers in respect to questions of taxation and 
finance. The doctrine laid down on this point by more than one 
eminent political authority, and generally accepted as sound, is, 



THE TREASURY. THE BUDGET. 89 

that questions of taxation "are questions upon which the House 
of Commons, representing the country, have peculiar claims to 
have their opinions listened to, and upon which the Executive 
Government may very fairly, without any loss of dignity, — pro- 
vided they maintain a sufficient revenue for the credit of the 
country and for its establishments, — reconsider any particular 
measure of finance they have proposed." This, however, as 
indeed is to be inferred from the proviso with which Lord John 
Russell qualified the above remarks, applies only to the questions 
of "ways and means, "" and not to "questions of supply." A 
Government, in other words , may legitimately submit to the 
rejection of a proposal to raise a particular sum of money in a 
particular way ; but they cannot acquiesce in a refusal on the 
part of Parliament to sanction the expenditure which ministers 
have assumed the responsibility of declaring necessary for the 
support of the Civil Government, and the maintenance of the 
public credit at home and abroad. "No Government," says one 
of the greatest of authorities on financial administration, "could 
be worthy of its place if it permitted its estimates to be seriously 
resisted by the Opposition ; and important changes can be made 
therein only under circumstances which permit of the raising of 
the question of a change of Government." 



VII. 

CHANGES OF MINISTRY. 



[From Bagehot's "English Constitution."] 

There is one error as to the English Constitution which crops 
up periodically. Circumstances which often, though irregularly, 
occur naturally suggest that error, and as surely as they happen it 
revives. The relation of Parliament, and especially of the House 
of Commons, to the Executive Government is the specific pecu- 
liarity of our constitution, and an event which frequently happens 
much puzzles some people as to it. 

That event is a change of ministry. All our administrators go 
out together. The whole executive government changes — at least, 
all the heads of it change in a body, and at every such change 
some speculators are sure to exclaim that such a habit is foolish. 
They say, t; No doubt Mr. Gladstone and Lord Russell may have 
been wrong about Reform ; no doubt Mr. Gladstone may have 
been cross in the House of Commons ; but why should either or 
both of these events change all the heads of all our practical 
departments? What could be more absurd than what happened 
in 1858? Lord Palmerston was for once in his life over-buoyant ; 
he gave rude answers to stupid enquiries ; he brought into the 
Cabinet a nobleman concerned in an ugly trial about a woman ; 
he, or his Foreign Secretary, did not answer a French despatch 
by a despatch, but told our ambassador to reply orally. And 
because of these trifles, or at any rate these isolated imadmin- 
istrative mistakes, all our administration had fresh heads. The 
Poor Law Board had a new chief, the Home Department a new 
chief, the Public Works a new chief. Surely this was absurd." 
Now, is this objection good or bad? Speaking generally, is it 
wise so to change all our rulers ? 

The practice produces three great evils. First, it brings in on 
a sudden new persons and untried persons to preside over our 
policy. A little while ago Lord Cranborne* had no more idea 

* Now Lord Salisbury, who, when this was written, was Indian Secretary. — Note to 
second edition. 



CHANGES OF MINISTRY. 9 1 

that he would now be Indian Secretary than that he would be a 
bill broker. He had never given any attention to Indian affairs ; 
he can get them up, because he is an able, educated man who can 
get up an} T thing. But they are not "part and parcel" of his mind ; 
not his subjects of familiar reflection, nor things of which he thinks 
by predilection, of which he cannot help thinking. But because 
Lord Russell and Mr. Gladstone did not please the House of 
Commons about Reform, there he is. A perfectly inexperienced 
man, so far as Indian affairs go, rules all our Indiau empire. 
And if all our heads of offices change together, so very frequently 
it must be. If twenty offices are vacant at once, there are almost 
never twenty tried, competent, clever men ready to take them. 
The difficulty of making up a government is very much like the 
difficulty of putting together a Chinese puzzle : the spaces do not 
suit what you have to put into them. And the difficult}' of match- 
ing a ministry is more than that of fitting a puzzle, because the 
ministers to be put in can object, though the bits of a puzzle can- 
not. One objector can throw out the combination. In 1847 
Lord Grey would not join Lord John Russell's projected govern- 
ment if Lord Palmerston was to be Foreign Secretary ; Lord 
Palmerston would be Foreign Secretary, and so the government 
was not formed. The cases in which a single refusal prevents 
a government are rare, and there must be many concurrent cir- 
cumstances to make it effectual. But the cases in which refusals 
impair or spoil a government are very common. It almost never 
happens that the ministrj'-iuaker can put into his offices exactly 
whom he would like ; a number of placemen are always too proud, 
too eager, or too obstinate to go just where they should. 

Again, this system not only makes new ministers ignorant, but 
keeps present ministers indifferent. A man cannot feel the same 
interest that he might in his work if he knows that by events over 
which he has no control, — b} T errors in which he had no share, — 
by metamorphoses of opinion, which belong to a different sequence 
of phenomena, he may have to leave that work in the middle, and 
may very likely never return to it. The new man put into a fresh 
office ought to have the best motive to learn his task thoroughly, 
but, in fact, in England, he has not at all the best motive. The 
last wave of party and politics brought him there, the next ma}- 
take him away. Young and eager men take, even at this dis- 



92 CHANGES OF MINISTRY. 

advantage, a keen interest in office work, but most men, especially 
old men, hardly do so. Many a battered minister ma} 7 be seen to 
think much more of the vicissitudes which make him and unmake 
him, than of any office matter. 

Lastly, a sudden change of ministers may easily cause a mis- 
chievous change of policy. In many matters of business, perhaps 
in most, a continuity of mediocrity is better than a hotch-potch of 
excellences. For example, now that the progress in the scientific 
arts is revolutionising the instruments of war, rapid changes in 
our head-preparers for land and sea war are most costly and most 
hurtful. A single competent selector of new inventions would 
probably in the course of years, after some experience, arrive at 
something tolerable ; it is in the nature of steady, regular, ex- 
perimenting ability to diminish, if not vanquish, such difficulties. 
But a quick succession of chiefs has no similar facilit}\ They do 
not learn from each others' experience ; — you might as well expect 
the new head boy at a public school to learn from the experience 
of the last head boy. The most valuable result of many years is 
a nicely-balanced mind instinctively heedful of various errors ; 
but such a mind is the incommunicable gift of individual ex- 
perience, and an outgoing minister can no more leave it to his 
successor, than an eider brother can pass it on to a younger. 
Thus a desultory and incalculable policy may follow from a rapid 
change of ministers. 

These are formidable arguments, but four things may, I think, 
be said in reply to, or mitigation of them. A little examination 
will show that this change of ministers is essential to a Parlia- 
mentary government ; — that something like it will happen in all 
elective governments, and that worse happens under presidential 
government ; — that it is not necessarily prejudicial to a good 
administration, but that, on the contrary, something like it is a 
prerequisite of good administration ; — that the evident evils of 
English administration are not the results of Parliamentary gov- 
ernment, but of grave deficiencies in other parts of our political 
and social state ; — that, in a word, they result not from what we 
have, but from what we have not. 

As to the first point, those who wish to remove the choice of 
ministers from Parliament have not adequately considered what a 
Parliament is. A Parliament is nothing less than a big meeting 
of more or less idle people. In proportion as you give it power 



CHANGES OF MINISTRY". 93 

it will enquire into everything, settle everything, meddle in every- 
thing. In an ordinary despotism, the powers of a despot are 
limited by his bodily capacity, and by the calls of pleasure ; he is 
but one man ; — there are but twelve hours in his day, and he is 
not disposed to employ more than a small part in dull business ; — 
he keeps the rest for the court, or the harem, or for society. He 
is at the top of the world, and all the pleasures of the world are 
set before him. Mostly there is only a very small part of political 
business which he cares to understand, and much of it (with the 
shrewd sensual sense belonging to the race) he knows that he will 
never understand. But a Parliament is composed of a great 
number of men by no means at the top of the world. When you 
establish a predominant Parliament, you give over the rule of the 
country to a despot who has unlimited time, — who has unlimited 
vanit} r , — who has, or believes he has, unlimited comprehension, 
whose pleasure is in action, whose life is work. There is no limit 
to the curiosity of Parliament. Sir Robert Peel once suggested 
that a list should be taken down of the questions asked of him in 
a single evening ; they touched more or less on fifty subjects, and 
there were a thousand other subjects which by parity of reason 
might have been added too. As soon as bore A ends, bore B 
begins. Some enquire from genuine love of knowledge, or from 
a real wish to improve what they ask about, — others to see their 
names in the papers, — others to show a watchful constituency that 
they are alert, — others to get on and to get a place in the govern- 
ment, — others from an accumulation of little motives they could 
not themselves analyse, or because it is their habit to ask things. 
And a proper reply must be given. It was said that "Darby 
Griffith destroyed Lord Palmerston's first Government," and 
undoubtedly the cheerful impertinence with which in the conceit 
of victory that minister answered grave men much hurt his Par- 
liamentary power. There is one thing which no one will permit 
to be treated lightty, — himself. And so there is one too which a 
sovereign assembly will never permit to be lessened or ridiculed, 
— its own power. The minister of the da,j will have to give an 
account in Parliament of all branches of administration, to say 
why they act when they do, and why they do not when they don't. 
Nor is chance enquiry all a public department has most to fear. 
Fifty members of Parliament may be zealous for a particular 
policy affecting the department, and fifty others for another policy, 



94 CHANGES OF MINISTRY. 

and between them they ma}~ divide its action, spoil its favourite 
aims, and prevent its consistently working out either of their own 
aims. The process is very simple. Every department at times 
looks as if it was in a scrape ; some apparent blunder, perhaps 
some real blunder, catches the public eye. At once the antago- 
nist Parliamentary sections, which want to act on the department, 
seize the opportunity. They make speeches, they move for docu- 
ments, they amass statistics. They declare "that in no other 
country is such a policy possible as that which the department is 
pursuing ; that it is mediaeval ; that it costs money ; that it wastes 
life ; that America does the contrary ; that Prussia does the con- 
trary." The newspapers follow according to their nature. These 
bits of administrative scandal amuse the public. Articles on them 
are ver} r easy to write, easy to read, easy to talk about. They 
please the vanity of mankind. We think as we read, "Thank 
God, Jam not as that man; I did not send green coffee to the 
Crimea ; I did not send patent cartridge to the common guns, and 
common cartridge to the breech loaders. I make money ; that 
miserable public functional only wastes money." As for the 
defence of the department, no one cares for it or reads it. Nat- 
urally at first hearing it does not sound true. The opposition 
have the unrestricted selection of the point of attack, and they 
seldom choose a case in which the department, upon the surface 
of the matter, seems to be right. The case of first impression 
will always be that something shameful has happened ; that such 
and such men did die ; that this and that gun would not go off; 
that this or that ship will not sail. All the pretty reading is 
unfavourable, and all the praise is very dull. 

Nothing is more helpless than such a department in Parliament 
if it has no authorised official defender. The wasps of the House 
fasten on it ; here they perceive is something easy to sting, and 
safe, for it cannot sting in return. The small grain of foundation 
for complaint germinates till it becomes a whole crop. At once 
the minister of the clay is appealed to ; he is at the head of 
the administration, and he must put the errors right, if such they 
are. The opposition leader says, "I put it to the right honour- 
able gentleman, the First Lord of the Treasury \ He is a man of 
business. I do not agree with him in his choice of ends, but he 
is an almost perfect master of methods and means. What he 
wishes to do he does do. Now I appeal to him whether such 



CHANGES OF MINISTRY. 95 

gratuitous errors, such fatuous incapacity, are to be permitted in 
the public service. Perhaps the right honourable gentleman will 
grant me his attention while I show from the very documents 
of the department," &c, &c. What is the minister to do? He 
never heard of this matter ; he does not care about the matter. 
Several of the supporters of the Government are interested in the 
opposition to the department ; a grave man, supposed to be wise, 
mutters, "This is too bad." The Secretary of the Treasury tells 
him, "The House is uneasy. A good many men are shaky. A. 
B. said yesterday he had been dragged through the dirt four nights 
following. Indeed I am disposed to think myself that the depart- 
ment has been somewhat lax. Perhaps an enquiry," &c, &c. 
And upon that the Prime Minister rises and says, "That Her 
Majesty's Government having given very serious and grave con- 
sideration to this most important subject, are not prepared to sa}' 
that in so complicated a matter the department has been perfectly 
exempt from error. He does not indeed concur in all the state- 
ments which have been made ; it is obvious that several of the 
charges advanced are inconsistent with one another. If A. had 
really died from eating green coffee on the Tuesday, it is plain he 
could not have suffered from insufficient medical attendance on the 
following Thursday. However, on so complex a subject, and one 
so foreign to common experience, he will not give a judgment. 
And if the honourable member would be satisfied with having the 
matter enquired into by a committee of that House, he will be 
prepared to accede to the suggestion." 

Possibly the outlying department, distrusting the ministry-, 
crams a friend. But it is happy indeed if it chances on a judi- 
cious friend. The persons most ready to take up that sort of 
business are benevolent amateurs, very well intentioned, very 
grave, very respectable, but also rather dull. Their words are 
good, but about the joints their arguments are weak. The}' speak 
very well, but while they are speaking the decorum is so great 
that everybody goes away. Such a man is no match for a couple 
of House of Commons gladiators. They pull what he says to 
shreds. They show or say that he is wrong about his facts. Then 
he rises in a fuss and must explain : but in his hurry he mistakes, 
and cannot find the right paper, and becomes first hot, then con- 
fused, next inaudible, and so sits down. Probably he leaves the 
House with the notion that the defence of the department has 



96 CHANGES OF MINISTRY. 

broken down, and so the Times announces to all the world as soon 
as it awakes. 

Some thinkers have naturally suggested that the heads of de- 
partments should as such have the right of speech in the House. 
But the system when it has been tried has not answered. M. 
Guizot tells us' from his own experience that such a system is not 
effectual. A great popular assembly has a corporate character ; it 
has its own privileges, prejudices, and notions. And one of these 
notions is that its own members — the persons it sees every day — 
whose qualities it knows, whose minds it can test, are those whom 
it can most trust. A clerk speaking from without would be an 
unfamiliar object. He would be an outsider. He would speak 
under suspicion ; he would speak without dignity. Very often he 
would speak as a victim. All the bores of the House would be 
upon him. He would be put upon examination. He would have 
to answer interrogatories. He would be put through the figures 
and cross-questioned in detail. The whole effect of what he said 
would be lost in quaestiunctdce and hidden in a controversial 
detritus. 

Again, such a person would rarefy speak with great ability. 
He would speak as a scribe. His habits must have been formed 
in the quiet of an office ; he is used to red tape, placidity, and the 
respect of subordinates. Such a person will hardly ever be able 
to stand the hurly-burly of a public assembly. He will lose his 
head— he will say what he should not. He will get hot and red ; 
he will feel he is a sort of culprit. After being used to the flat- 
tering deference of deferential subordinates, he will be pestered 
by fuss and confounded by invective. He will hate the House as 
naturally as the House does not like him. He will be an incom- 
petent speaker addressing a hostile audience. 

And what is more, an outside administrator addressing Parlia- 
ment can move Parliament only by the goodness of his arguments. 
He has no votes to back them up with. He is sure to be at 
chronic war with some active minority of assailants or others. 
The natural mode in which a department is improved on great 
points and new points is bj 7 external suggestion ; the worse foes 
of a department are the plausible errors which the most visible 
facts suggest, and which only half visible facts confute. Both 
the good ideas and the bad ideas are sure to find advocates first 
in the press and then in Parliament. Against these a permanent 



CHANGES OF MINISTRY. 



97 



clerk would have to contend by argument alone. The Minister, 
the head of the parliamentary Government, will not care for him. 
The Minister will say in some undress soliloquy, "These per- 
manent 'fellows' must look after themselves. I cannot be both- 
ered. I have only a majority of nine, and a very shaky majority, 
too. I cannot afford to make enemies for those whom I did not 
appoint. They did nothing for me, and I can do nothing for 
them." And if the permanent clerk come to ask his help, he will 
say in decorous language, "I am sure that if the department can 
evince to the satisfaction of Parliament that its past management 
has been such as the public interests require, no one will be more 
gratified than myself. I am not aware if it will be in my power 
to attend in my place on Monday ; but if I can be so fortunate, I 
shall listen to your official statement with nry very best attention." 
And so the permanent public servant will be teased by the wits, 
oppressed by the bores, and massacred by the innovators of Par- 
liament. 

The incessant tyranny of Parliament over the public offices is 
prevented and can only be prevented by the appointment of a 
parliamentary head, connected by close ties with the present 
ministry and the ruling part}' in Parliament. The parliamentary 
head is a protecting machine. He and the friends he brings 
stand between the department and the busybodies and crotchet- 
makers of the House and the country. So long as at an}" moment 
the policy of an office could be altered by chance votes in either 
House of Parliament, there is no security for an}- consistency. 
Our guns and our ships are not, perhaps, very good now. But 
they would be much worse if any thirty or forty advocates for 
this gun or that gun could make a motion in Parliament, beat the 
department, and get their ships or their guns adopted. The 
"Black Breech Ordnance Company" and the "Adamantine Ship 
Company" would soon find representatives in Parliament, if forty 
or fifty members would get the national custom for their rubbish. 
But this result is now prevented by the parliamentary head of the 
department. As soon as the Opposition begins the attack, he 
looks up his means df defence. He studies the subject, compiles 
his arguments, and builds little piles of statistics, which he hopes 
will have some effect. He has his reputation at stake, and he 
wishes to show that he is worth his present place, and fit for 
future promotion. He is well known, perhaps liked, by the House 



98 CHANGES OF MINISTRY- 

— at any rate the House attends to him ; he is one of the regular 
speakers whom the} 7 hear and heed. He is sure to be able to get 
himself heard, and he is sure to make the best defence he can. 
And after he has settled his speech he loiters up to the Secretary 
of the Treasury, and says quietly, "They have got a motion 
against me on- Tuesday, you know. I hope }*ou will have your 
men here. A lot of fellows have crotchets and though the} 7 do not 
agree a bit with one another, they are all against the department ; 
they will all vote for the enquiry." And the Secretary answers, 
"Tuesday, you say; no (looking at a paper), I do not think it 
will come on on Tuesday. There is Higgins on Education. He 
is good for a long time. But anyhow it shall be all right." And 
then he glides about and speaks a word here and a word there, in 
consequence of which, when the anti-official motion is ma(|e, a 
considerable array of steady, grave faces sits behind the Treasury 
Bench — nay, possibly a rising man who sits in outlying indepen- 
dence below the gangway rises to defend the transaction ; the 
department wins by thirty-three, and the management of that 
business pursues its steady way. 

This contrast is no fancy picture. The experiment of con- 
ducting the administration of a public department by an inde- 
pendent unsheltered authority has often been tried, and always 
failed. Parliament always poked at it, till it made it impossible. 
The most remarkable is that of the Poor Law. The administra- 
tion of that law is not now very good, but it is not too much to 
say that almost the whole of its goodness has been preserved by 
its having an official and party protector in the House of Com- 
mons. Without that contrivance we should have drifted back 
into the errors of the old Poor Law, and superadded to them the 
present meanness and incompetence in our large towns. All 
would have been given up to local management. Parliament 
would have interfered with the central board till it made it impo- 
tent, and the local authorities would have been despotic. The 
first administration of the new Poor Law was b} r "Commission- 
ers" — the three kings of Somerset House, as they were called. 
The system was certainly not tried in untrustworthy hands. At 
the crisis Mr. Chadwick, one of the most active and best admin- 
istrators in England, was the secretary and the motive power: 
the principal Commissioner was Sir George Lewis, perhaps the 
best selective administrator of our time. But the House of Com- 



CHANGES OF MINISTRY. 99 

mons would not let the Commission alone. For a long time it 
was defended because the Whigs had made the Commission, and 
felt bound as a party to protect it. The new law started upon a 
certain intellectual impetus, and till that was spent its administra- 
tion was supported in a rickety existence by an abnormal strength. 
But afterwards the Commissioners were left to their intrinsic 
weakness. There were members for all the localities, but there 
were none for them. There were members for every crotchet and 
corrupt interest, but there were none for them. The rural 
guardians would have liked to eke out wages by rates ; the city 
guardians hated control, and hated to spend mone}. The Com- 
mission had to be dissolved, and a parliamentary head was added ; 
the result is not perfect, but it is an amazing improvement on 
what would have happened in the old system. The new system 
has not worked well because the central authority has too little 
power ; but under the previous system the central authority was 
getting to have, and by this time would have had, no power at all. 
And if Sir George Lewis and Mr. Chad wick could not maintain 
an outlying department in the face of Parliament, how unlikely 
that an inferior compound of discretion and activity will ever 
maintain it ! 

These reasonings show wiry a changing parliamentary head, a 
head changing as the ministry changes, is a necessity of good 
Parliamentary government, and there is happily a natural pro- 
vision that there will be such heads. Party organisation ensures 
it. In America, where on account of the fixedly recurring presi- 
dential election, and the perpetual minor elections, party organisa- 
tion is much more effectually organised than anywhere else, the 
effect on the offices is tremendous. Every office is filled anew at 
every presidential change, at least every change which brings in 
a new party. Not only the greatest posts, as in England, but the 
minor posts change their occupants. The scale of the financial 
operations of the Federal government is now so increased that 
most likely in that department, at least, there must in future 
remain a permanent element of great efficiency ; a revenue of 
£90,000,000 sterling cannot be collected and expended with a 
trifling and changing staff. But till now the Americans have tried 
to get on not only with changing heads to a bureaucracy, as the 
English, but without any stable bureaucracy at all. They have 
facilities for trying it which no one else has. All Americans can 

' UfC. 



100 CHANGES OF MINISTRY. 

administer, and the number of them really fit to be in succession 
lawyers, financiers, or military managers is wonderful ; they need 
j not be as afraid of a change of all their officials as European 
I countries must, for the incoming substitutes are sure to be much 
j better there than here ; and they do i. ot fear, as we English fear, 
that the outgoing officials will be left destitute in middle life, with 
no hope for the future and no recompense for the past, for in 
America (whatever may be the cause of it) opportunities are 
numberless, and a man who is ruined by being "off the rails" in 
England soon there gets on another line. The Americans will 
probably to some extent modify their past system of total admin- 
istrative cataclysms, but their very existence in the only com- 
peting form of free government should prepare us for and make 
us patient with the mild transitions of Parliamentary government. 
These arguments will, I think, seem conclusive to almost eveiy 
one ; but, at this moment, many people will meet them thus : they 
will say, "You prove what we do not deny, that this sj'stem of 
periodical change is a necessary ingredient in Parliamentaiy gov- 
ernment, but you have not proved what we do deny, that this 
change is a good thing. Parliamentary government may have 
that effect, among others, for anything we care : we maintain 
merely that it is a defect." In answer, I think it may be shown, 
not, indeed, that this precise change is necessary to a perma- 
nently perfect administration, but that some analogous change, 
some change of the same species, is so. 

At this moment, in England, there is a sort of leaning towards 
bureaucracy — at least among writers and talkers. There is a 
seizure of partiality, to it. The English people do not easily 
change their rooted notions, but they have many unrooted notions. 
Any great European event is sure for a moment to excite a sort of 
twinge of conversion to something or other. Just now, the 
triumph of the Prussians — the bureaucratic people, as is believed, 
par excellence — has excited a kind of admiration for bureaucrac}', 
which a few years since we should have thought impossible. I do 
not presume to criticise the Prussian bureaucracy of my own 
knowledge ; it certainly is not a pleasant institution for foreigners 
to come across, though agreeableness to travellers is but of very 
second-rate importance. But it is quite certain that the Prussian 
bureaucracy, though we, for a moment, half admire it at a dis- 
tance, does not permanently please the most intelligent and liberal 



CHANGES OF MINISTRY. 101 

Prussians at home. What are two among the principal aims of 
the Fortschritt Partei — the party of progress — as Mr. Grant Duff, 
the most accurate and philosophical of our describers, delineates 
them ? 

First, "a liberal system, conscientiously carried out in all the 
details of the administration, with a view to avoiding the scandals 
now of frequent occurrence, when an obstinate or bigoted official 
sets at defiance the liberal initiations of the government, trusting 
to backstairs influence." 

Second, "an easy method of bringing to justice guilty officials, 
who are at present, as in France, in all conflicts with simple citi- 
zens like men armed cap-di-pie fighting with undefenceless." A 
system against which the most intelligent native liberals bring, 
even with colour of reason, such grave objections is a dangerous 
model for foreign imitation. » 

The defects of bureaucrac}* are, indeed, well known. It is a 
form of government which has been tried often enough in the 
world, and it is easy to show what, human nature being what it 
in the long run is, the defects of a bureaucracy must in the long 
run be. 

It is an inevitable defect, that bureaucrats will care more for 
routine than for results ; or, as Burke put it, "that they will think 
the substance of business not to be much more important than the 
forms of it." Their whole education and all the habit of their 
lives make them do so. They are brought young into the particu- 
lar part of the public service to which they are attached ; they are 
occupied for years in learning its forms — afterwards, for years too, 
in applying these forms to trifling matters. The}* are, to use the 
phrase of an old writer, "but the tailors of business; they cut 
the clothes, but they do not find the body." Men so trained must 
come to think the routine of business not a means, but an end — 
to imagine the elaborate machinery of which they form a part, 
and from which they derive their dignit}*, to be a grand and 
achieved result, not a working and changeable instrument. But 
in a miscellaneous world there is now one evil and now another. 
The ver}* means which best helped you yesterday may very likely 
be those which most impede } t ou to-morrow — you may want to do 
a different thing to-morrow, and all your accumulation of means 
for yesterday's work is but an obstacle to the new work. The 
Prussian military system is the theme of popular wonder now, 



102 CHANGE OF MINISTRY. 

yet it sixty } T ears pointed the moral against form. We have all 
heard the saying that "Frederic the Great lost the battle of 
Jena." It was the system which he had established — a good sys- 
tem for his wants and his times, which, blind^ adhered to, and 
continued into a different age — put to strive with new competitors, 
— brought his country to ruin. The "dead and formal" Prussian 
S3 T stem was then contrasted with the "living" French system — the 
sudden outcome of the new explosive democracy. The system 
which now exists is the product of the reaction ; and the history 
of its predecessor is a warning what is future histxny may be too. 
It is not more celebrated for its clay than Frederic's for his, and 
principle teaches that a bureaucracy, elated by sudden success, 
and marvelling at its own merit, is the most unimproving and 
shallow of governments. 

Not only does a bureaucracy thus tend to under-government, in 
point of quality ; it tends to over-government, in point of quan- 
tity. The trained official hates the rude, untrained public. He 
thinks that they are stupid, ignorant, reckless — that they cannot 
tell their own interest — that they should have the leave of the 
office before they do an}'thing. Protection is the natural inborn 
creed of every official body ; free trade is an iutrinsic idea, alien 
to its notions, and hardly to be assimilated with life ; and it is 
easy to see how an accomplished critic, used to a free and active 
life, could thus describe the official. 

"Every imaginable and real social interest," says Mr. Laing, 
"religion, education, law, police, every branch of public or private 
business, personal liberty to move from place to place, even from 
parish to parish within the same jurisdiction ; liberty to engage in 
any branch of trade or industr}', on a small or large scale ; all the 
objects, in short, in which body, mind, and capital can be em- 
ployed in civilised society ; were gradually laid hold of for the 
emphypnent and support of functionaries, were centralised in 
bureaux, were superintended, licensed, inspected, reported upon, 
and interfered with by a host of officials scattered over the land, 
and maintained at the public expense, yet with no conceivable utility 
in their duties. They are not, however, gentlemen at large, enjo3 T - 
ing salary without service. They are under a semi-military disci- 
pline. In Bavaria, for instance, the superior civil functionary can 
place his inferior functionary under house-arrest for neglect of duty, 
or other offence against civil functionary discipline. In Wurtemberg, 



CHANGES OF MINISTRY. 103 

the functionary cannot marry without leave from his superior. Vol- 
taire says, somewhere, that, 'the art of government is to make 
two-thircls of a nation pay all it possibly can pay for the benefit 
of the other third.' This is realised in Germany by the function- 
ary system. The functionaries are not there for the benefit of the 
people, but the people for the benefit of the functionaries. All 
this machinery of functionarism, with its numerous ranks and 
gradations in every district, filled with a staff of clerks and ex- 
pectants in every department looking for employment, appoint- 
ments, or promotions, was intended to be a new support of the 
throne in the new social state of the Continent ; a third class, in 
connection with the people by their various official duties of inter- 
ference in all public or private affairs, yet attached by their 
interests to the kingly power. The Beamptenstand, or functionary 
class, was to be the equivalent to the class of nobility, gentry, 
capitalists, and men of larger landed property than the peasant- 
proprietors, and was to make up in numbers for the want of 
individual weight and influence. In France, at the expulsion of 
Louis Philippe, the civil functionaries were stated to amount to 
807,030 individuals. This civil army was more than double of 
the military. In Germany, this class is necessarily more numer- 
ous in proportion to the population, the landwehr system impo^irg 
many more restrictions than the conscription on the free action of 
the people, and requiring more officials to manage it, and the 
semi-feudal jurisdictions and forms of law requiring much more 
writing and intricate forms of procedure before the courts than 
the Code Napoleon." 

A bureaucracy is sure to think that its dut\* is to augment 
official power, official business, or official members, rather than to 
leave free the energies of mankind ; it overdoes the quantity of 
government, as well as impairs its quality. 

The truth is, that a skilled bureaucracy — a bureaucracy trained 
from early life to its special avocation — is, though it boasts of an 
- appearance of science, quite inconsistent with the true principles 
of the art of business. That art has not yet been condensed into 
precepts, but a great many experiments have been made, and 
a vast floating vapour of knowledge floats through societ}'. 
One of the most sure principles is, that success depends on a 
due mixture of special and nonspecial minds — of minds which 
attend to the means, and of minds which attend to the end. 



104 CHANGES OF MINISTRY. 

The success of the great joint-stock banks of London — the 
most remarkable achievement of recent business — has been an 
example of the use of this mixture. These banks are managed 
by a board of persons mostly not trained to the business, supple- 
mented by, and annexed to, a bod}' of specially trained officers, 
who have been bred to banking all their lives. These mixed 
banks have quite beaten the old banks, composed exclusively of 
pure bankers ; it is found that the board of directors has greater 
and more flexible knowledge — more insight into the wants of a 
commercial community — knows when to lend and when not to 
lend, better than the old bankers, who had never looked at life, 
except out of the bank windows. Just so the most successful 
railwa}'s in Europe have been conducted — not by engineers or 
traffic managers — but by capitalists ; by men of a certain busi- 
ness culture, if of no other. These capitalists buy and use the 
services of skilled managers, as the unlearned attorney buys and 
uses the services of the skilled barrister, and manage far better 
than any of the different sorts of special men under them. The} T 
combine these different specialties — make it clear where the realm 
of one ends and that of the other begins, and add to it a wide 
knowledge of large affairs, which no special man can have, and 
which is only gained by diversified action. But this utility of 
leading minds used to generalise, and acting upon various mate- 
rials, is entirelj T dependent upon their position. They must not 
be at the bottom — they must not even be half way up — they must 
be at the top. A merchant's clerk would be a child at a bank 
counter ; but the merchant himself could, very likely, give good, 
clear, and useful advice in a bank court. The merchant's clerk 
would be equally at sea in a railway office, but the merchant him- 
self could give good advice, very likely, at a board of directors. 
The summits (if I may so say) of the various kinds of business 
are, like the tops of mountains, much more alike than the parte 
below — the bare principles are much the same ; it is only the rich 
variegated details of the lower strata that so contrast with one 
another. But it needs travelling to know that the summits are 
the same. Those who live on one mountain believe that their 
mountain is wholly unlike all others. 

The application of this principle to Parliamentar}- government 
is very plain ; it shows at once that the intrusion from without 
upon an office of an exterior head of the office, is not an evil, but 



CHANGES OF MINISTRY. 105 

that, on the contrary, it is essential to the perfection of that office. 
If it is left to itself, the office will become technical, self-absorbed, 
self-multiplying. It will be likely to overlook the end in the 
means ; it will fail from narrowness of mind ; it will be eager in 
seeming to do ; it will be idle in real doing. An extrinsic chief 
is the fit corrector of such errors. He can sa} y to the permanent 
chief, skilled in the forms and pompous with the memories of his 
office, "Will you, Sir, explain to me how this regulation conduces 
to the end in view? According to the natural view of things, the 
applicant should state the whole of his wishes to one clerk on one 
paper ; you make him say it to five clerks on five papers." Or, 
again, "Does it not appear to you, Sir, that the reason of this 
formality is extinct. When we were building wood ships, it was 
quite right to have such precautions against fire ; but now that we 
are building iron ships," &c, &c. If a junior clerk asked these 
questions, he would be "pooh-poohed !" It is only the head of 
an office that can get them answered. It is he, and he only, that 
brings the rubbish of office to the burning glass of sense. 

The immense importance of such a fresh mind is greatest in a 
country where business changes most. A dead, inactive, agricul- 
tural country may be governed by an unalterable bureau for years 
and years, and no harm come of it. If a wise man arranged the 
bureau rightly in the beginning, it may run rightly a long time. 
But, if the country be a progressive, eager, changing one, soon 
the bureau will either cramp improvement, or be destroyed itself. 

This conception of the use of a Parliamentary head shows how 
wrong is the obvious notion which regards him as the principal 
administrator of his office. The late Sir George Lewis used to be 
fond of explaining this subject. He had every means of knowing. 
He was bred in the permanent civil service. He was a very suc- 
cessful Chancellor of the Exchequer, a very successful Home 
Secretarj-, and he died Minister for War. He used to say, "It is 
not the business of a Cabinet Minister to work his department. 
His business is to see that it is property worked. If he does 
much, he is probably doing harm. The permanent staff of the 
office can do what he chooses to do much better, or if they cannot, 
they ought to be removed. He is only a bird of passage, and 
cannot compete with those who are in the office all their lives 
round." Sir George Lewis was a perfect Parliamentary head of 
an office, so far as that head is to be a keen critic and rational 
corrector of it. 



10G * CHANGES OF MINISTRY. 

But Sir George Lewis was not perfect ; he was not even an 
average good head in another respect. The use of a fresh mind 
applied to the official mind is not only a corrective use, it is also 
an animating use. A public department is very apt to be dead to 
what is wanting for a great occasion till the occasion is past. 
The vague public mind will appreciate some signal duty before 
the precise, occupied administration perceives it. The Duke of 
Newcastle was of this use at least in the Crimean war. He 
roused up his department, though when roused it could not act. 
A perfect Parliamentary minister would be one who should add 
the animating capacity of the Duke of Newcastle to the accumu- 
lated sense, the detective instinct, and the laissez faire habit of 
Sir George Lewis. 

As soon as we take the true view of Parliamentary office we 
shall perceive that, fairly, frequent change in the official is* an 
advantage, not a mistake. If his function is to bring a repre- 
sentative of outside sense and outside animation in contact with 
the inside world, he ought often to be changed. No man is a 
perfect representative of outside sense. "There is some one," 
says the true French saying, "who is more able than Talleyrand, 
more able than Napoleon. C'est tout le monde." That many- 
sided sense finds no microcosm in any single individual. Still 
less are the critical function and the animating function of a Par- 
liamentar}^ minister likely to be perfectly exercised by one and 
the same man. Impelling power and restraining wisdom are as 
opposite as any two things, and are rarely found together. And 
even if the natural mind of the Parliamentary minister was per- 
fect, long contact with the office would destroy his use. Inevitably 
he would accept the ways of office, think its thoughts, live its life. 
The "dyer's hand would be subdued to what it works in." If the 
function of a Parliamentary minister is to be an outsider to his 
office, we must not choose one who, by habit, thought, and life, is 
acclimatised to its wa3*s. 

There is every reason to expect that a Parliamentary statesman 
will be a man of quite sufficient intelligence, quite enough various 
knowledge, quite enough miscellaneous experience, to represent 
effectually general sense in opposition to bureaucratic sense. 
Most Cabinet ministers in charge of considerable departments 
are men of superior ability ; I have heard an eminent living 
statesman of long experience say that in his time he only knew 



CHANGES OF MINISTRY. 107 

one instance to the contrary. And there is the best protection 
that it shall be so. A considerable Cabinet minister has to defend 
his Department in the face of mankind ; and though distant 
observers and sharp writers may depreciate it, this is a very dif- 
ficult thing. A fool, who has publicly to explain great affairs, 
who has publicly to answer detective questions, who has publicly 
to argue against able and quick opponents, must soon be shown 
to be a fool. The very nature of Parliamentary government 
answers for the discovery of substantial incompetence. 



VIII. 

THE CONDUCT OF BUSINESS IN CONGRESS. 



[From an Article by Senator Hoar in the North Ameri- 
can Review, Feb., 1879.] 

There are few subjects of equal public interest concerning 
which so much misunderstanding prevails among well-informed 
people as the course of business in the national House of Repre- 
sentatives. Most persons think that their representative can at 
any time, if he choose, rise in his place and demand the attention 
of the House to a speech on any subject which may interest him 
or his constituents, and compel the body to record its opinion 
on any bill or resolution he sees fit to introduce. This is far from 
being true. The House of Representatives is governed by a com- 
plicated and artificial system of rules, so difficult to be understood 
that many able men of great national fame go through long terms 
of service without professing to comprehend it. It is not my pur- 
pose to write a treatise on this complex arrangement. I wish 
only to call attention to the operation of a few parts of the 
mechanism which seem to me to require alteration, and to show 
how they tend to diminish the authority, weight, and dignity of 
the House, and how they have deprived that illustrious body of 
the equality with the Senate which the framers of the Constitution 
contemplated. 

The representatives of the large States in the Convention of 
1787 contended earnestly for the apportionment of representation 
among the States in both branches according to numbers. The 
representatives of the smalKStates demanded equality of represen- 
tation in the Senate. This difference seemed for a long time inca- 
pable of adjustment, and nearly caused the Convention to break 
up without accomplishing its purpose. The difficulty was com- 
promised by the appointment of a committee of one from each 
State, whose report was adopted with some modification. The 
large States yielded the equality of representation in the Senate, 
but demanded and secured for the House the sole power of origi- 
nating bills for raising revenue. The clause as reported was as 
follows : 



CONDUCT OF BUSINESS IN CONGRESS. 109 

All bills for raising or appropriating rnone}', and for fixing the 
salaries of the officers of the Government of the United States, 
shall originate in the first branch of the Legislature, and shall not 
be altered or amended by the second branch ; and no money shall 
be drawn from the public treasury but in pursuance of appropria- 
tions to be originated in the first branch. 

In the second branch, each State shall have an equal vote. 

The clause as to revenue bills was adopted in this form : 

All bills for raising revenue shall originate in the House of Rep- 
resentatives ; but the Senate may propose or concur with amend- 
ments, as on other bills. 

It will be observed that, while the Convention voted to confine 
the power of originating bills for raising revenue to the House, it 
with equal distinctness voted not to extend this prohibition to 
bills for appropriating mone} T . The system so established differs 
from the Constitution of England in three essential particulars : 
In England, no appropriation for a public purpose can be intro- 
duced in the House of Commons without a previous request from 
the Crown ; no money bill can be amended b}^ the Lords ; and the 
exclusive prerogative of the Commons extends to all bills for 
raising or appropriating money. So jealous are the Commons of 
this prerogative, that the Lords rarely attempt to make any but 
verbal alterations in money bills, in which the sense or intention 
is not affected ; and, when the Commons accept these, they make 
special entries on their journals recording the character and object 
of the amendments, and their reasons for agreeing to them. 

There is no historical evidence that anybody in the Convention 
gave much consideration to the effect of these changes from the 
English system upon the value of the prerogative. The better 
opinion was, that the importance of the privilege, as asserted by 
the English Commons, was veiy much exaggerated, and that 
American experience in those States whose constitutions contained 
a like provision had shown that it was without advantage, and 
was a fruitful source of wrangling between the two Houses. Mr. 
Madison said : "I confess I see nothing of concession in it. The 
originating money bills is no concession on the part of the 
smaller States, for, if seven States in the second branch should 
want such a bill, their interest in the first branch will prevail to 
bring it forward. It is nothing more than a nominal privilege." 

This is one of the few subjects upon which General Washing- 
ton's vote is recorded: "He disapproved, and till now voted 



110 CONDUCT OF BUSINESS IN CONGRESS. 

against, the exclusive privilege. He gave up his judgment," he 
said, " because it was not of very material weight with him, and 
was made an essential point with others, who, if disappointed, 
might be less content in other points of real weight." 

Similar views were expressed by many of the most eminent 
members. Three of the larger States, to whom this privilege was 
offered as a concession, by way of equivalent for the equality of 
the small States in the Senate, voted against it as an independent 
proposition. Mr. Hallam, in bis " Constitutional Histor}'," ex- 
presses a similar opinion as to the exaggeration by the House of 
Commons of the importance of their exclusive privilege. If this 
view was sound when the scheme was to deny all power of amend- 
ment to the Senate, it has infinitely greater weight after the power 
of amendment has been yielded. The pocket of the Englishman 
is protected against lavish expenditure by the fact that no 'six- 
pence of his money can be granted for a public purpose that has 
not first been asked for bj^ the Crown, on the advice of a responsi- 
ble and accountable minister, and because none of his possessions 
can be made the subject of tax, excise, or duty, unless the pro- 
posal come from his own representative. The assent of the 
sovereign and the Lords is only needed to give the force of law to 
what is the gift of the free will of the Commons. 

To the system established by our Constitution, widely depart- 
ing as it did from the methods by which the unwritten constitu- 
tional law of England keeps the power of the purse in the 
hands of her Majesty's faithful Commons, two important additions 
have been made by construction. It should be stated that, when- 
ever a question has arisen between the two branches in regard to 
the construction of this clause in the Constitution, the House of 
Representatives has invariably had its own way. It was said by 
Mr. Webster, in the Senate, in 1833 : " The constitutional ques- 
tion must be regarded as important, but it was one which could not 
be settled by the Senate. It was purely a question of privilege, 
and the decision of it belonged alone to the House." 

1. By a practice as old as the Government itself, the constitu- 
tional prerogative of the House has been held to apply to all the 
general appropriation bills. 

2. The power of amendment, as on other bills, has not been 
held, as between the two Houses, to be limited to the subjects em- 
braced in the bill as sent from the House, or to perfecting its spe- 



CONDUCT OF BUSINESS IN CONGRESS. Ill 

cial arrangements. Each House has a rule, which seldom is an 
obstacle to the accomplishment of anything which a majority of its 
members desire, declaring that no proposition on a subject dif- 
ferent from that under consideration shall be admitted under color 
of amendment. It seems impossible to doubt that the amend- 
ments contemplated by the framers of the Constitution were 
amendments touching the particular subject matter to which the 
clauses received from the House relate. The House of Commons, 
so strict to assert its prerogative against the Lords, admits the 
right of the Lords to amend, by admitting altogether provisions 
which are not germane to the other provisions of the bill (189 
Hansard, third series, 411). 

The rules of our House are so construed that, on the great 
appropriation bills, any amendment designed to carry into effect 
existing law, or provide for administering any department of the 
Government, is held admissible ; and they are never invoked b} T 
the House against the Senate. 

If this were all — if the House and Senate were two bodies of 
equal numbers, acting under the same rules, and made up sub- 
stantially of men of the same sort — it is difficult to perceive the 
slightest advantage that the House or the people could derive from 
this prerogative, so far as it relates to the appropriation of public 
money. The eleven general appropriation bills, and one or more 
deficiency bills, are reported annually. The former are required 
by a rule of the House to be reported from the Committee on Ap- 
propriations within thirty da}*s after its appointment. This rule 
is seldom obeyed. These bills contain, on an average, appropria- 
tions to the amount of more than two hundred millions, to which 
the Senate commonly adds many millions more. These Senate 
amendments embrace evei'3 7 variety of expenditure for the pub- 
lic service, and every variety of new legislation ; the dis- 
cretion of the upper branch being, in this particular, as absolutely 
unaffected b}' this constitutional barrier as if it had no existence 
whatever. The wishes of the Senate, in case of difference of 
opinion in regard to a proposition which the Senate originates, 
are much more likely to prevail when that proposition is added to 
a measure the House has agreed to, than if the same measure 
should originate as a separate bill in the Senate, and be sent to 
the House by itself for consideration on its own merits. 

The surrender of the power of amendment, then, as it has 
invariably been construed, was the surrender of the whole privi- 



112 CONDUCT OF BUSINESS IN CONGRESS. 

lege. It has not only destr<jyed the advantage intended to be 
secured for the immediate representatives of the people, but has 
given the Senate a considerable preponderance of influence in 
legislation. It has enabled the Senate to exert the power of 
tacking clauses to bills of supply, and thereby to extort the con- 
sent of the House. This power has been always denied in 
Parliament, even to the Commons as against the Lords. On 
December 9, 1702, it was ordered and declared by the Lords, 
" that the annexing any clause or clauses to a bill of aid or 
supply, the matter of which is foreign to or different from the mat- 
ter of the said bill of aid or supply, is unparliamentary, and tends 
to the destruction of the Constitution of this Government " (see 
Sir Thomas Erskine May's " Parliamentary Practice," seventh 
edition, pages 581-583). 

But the destruction of the rightful power of the House over 
the great appropriation bills which regulate and supply the Gov- 
ernment in all its ordinary administrative functions, and which 
contain a very large portion of its general legislation, is rendered 
more complete by the method of doing business to which the 
House has confined itself by its own rules. All appropriation 
bills which are first reported in the House must, by their 
rules, be first discussed in Committee of the Whole. No bill can 
be reported from this committee to the House until every member 
has had an opportunity to move as many amendments as he 
chooses. Debate cannot be stopped by the previous question. 
The House before going into committee may, it is true, order 
debate to close on any particular section or on the whole bill at a 
fixed time. Yet this does not prevent amendments, and is rarely 
resorted to until debate has strayed from the particular subject of 
the bill into general political discussion. So far, therefore, as the 
consideration of the appropriation bills as originally reported is 
concerned, the usages of the House preserve for itself the char- 
acter of a deliberative assembly, and for each of its members the 
privilege of expressing his opinion in debate, and of bringing to 
a vote whatever measure he may desire. But these bills then go to 
the Senate. They are there examined by the appropriate 
committee, and reported to the Senate, where da} T s are spent in 
their consideration, with unlimited opportunity for debate and 
amendment. Not only is the original bill remodeled, reviewed, 
revised, at the pleasure of the Senate, but hundreds of entirely 



CONDUCT OF BUSINESS IN CONGRESS. 113 

new provisions are added at the pleasure of the upper branch. 
The measure which came from the House, the prerogative of orig- 
inating which is specially secured by the Constitution and guarded 
by the House with such jealous care, has precisely the same 
position and weight, neither more nor less, as any proposition 
moved by a single member of the Senate. 

When the bill goes back to the House, containing the Senate 
amendments, the session is usually far advanced. In the year of 
the short session the constitutional limit of the life of the House 
is approaching. In the alternate j^ears, when the session extends 
into summer, the scorching heats render men eager to leave 
Washington, and the two branches have usually fixed the time of 
adjournment by concurrent vote. There is no time for examina- 
tion, debate, or reference to Committee of the Whole. The 
House non-concurs in the Senate amendments in the lump, without 
hearing them read. The Senate insists. A conference is asked 
and granted. Conference committees are appointed, consisting 
of three members from each branch, usually the chairman of the 
Committee on Appropriations, with that member of the committee 
most conversant with the subject of the bill, and one member of 
the minority. These committees confer and agree upon a report 
compromising and compounding all matters of difference between 
the two Houses as they may be able. Their report is matter of 
the highest privilege. It may be made at any time, no matter in 
what business the House be engaged. A member who is speaking 
may be taken off his feet by its superior claim to attention. No 
motion to lay it on the table, to indefinitely postpone, or to amend 
it is in order. The House or Senate must accept it as a whole or 
reject it as a whole. If it be rejected, a new conference may be 
ordered, but the result of a conference must sooner or later be 
accepted in a mass, or the whole bill be lost. The House is all 
this time under a sort of duress. If it suffer the appropriation 
bill to fail, the Government must stop, or an extra session be held 
at midsummer, with its cost and discomfort. Every other year the 
House votes on the appropriation bill with the knowledge that if 
it do not agree to amendments on which the Senate insists, and 
the bill fail, its power over the subject must be lost altogether by 
the arrival of the 4th of March, when its life expires, and the 
new bill must be dealt with by its successors. 

Degrading as this system is to the House as a body, its effect 
on the individual member is still more remarkable. The whole 



114 CONDUCT OF BUSINESS IN CONGRESS. 

power of legislation over that vast field which is covered by the 
Senate's amendments to the great appropriation bills is in practice 
delegated to two of the three members who are appointed on the 
conference committee. No other member gets a chance to discuss 
.them, to vote separately on any one of them, to make any motion 
in relation to them, or even to see in print what the committee 
recommend in regard to them. " Gape, sinner, and swallow." 

If the reader has followed this somewhat technical statement, 
he has observed that while the power of amendment reserved in 
our Constitution, as it is expounded in practice, allows to the 
Senate and to each of its members the fullest opportunit} T to deal 
with appropriation and revenue bills as freely as with bills relating 
to any other subject, the rules and usages of the House leave that 
body with much less practical power of deliberation or amendment 
in regard to all those provisions which have their origin in the 
Senate than the House of Lords has in relation to money bills 
under the English system. 

Suppose, now, all this were reversed. Suppose the Constitution 
were to provide that all money bills should originate in the Senate, 
permitting the House to amend, as in the case of other bills. The 
House would then, on the arrival of the bill, commit it to the 
Committee of the Whole, where every clause proposed by the 
Senate and every amendment proposed in the House would be 
fully discussed, with unlimited power to propose changes, every 
individual member having the fullest opportunity to express his 
opinion. or offer his plan; and the conference committee of both 
branches would receive the bill fully possessed of the views of 
their respective Houses as to every syllable which had been pro- 
posed by either. When, therefore, the large States accepted the 
clause in question as a partial equivalent for the equality of the 
small States in the Senate, they accepted a further limitation of 
their own power. When the House, in 1832, refused to permit 
Mr. Clay's compromise bill to have its origin in the Senate ; when, 
in 1856, it refused to permit the Senate to originate some of the 
general appropriation bills ; and when, in 1870, it refused to 
permit the Senate to add a revision of the whole tariff to a bill 
abolishing the duties on tea and coffee, its -victory was an abdica- 
tion of its equality in legislation with the Senate, and tended to 
deprive eveiy one of its members of his right to debate or amend- 
ment in regard to a large part of the most important legislation of 
the country. 



CONDUCT OF BUSINESS IN CONGRESS. 115 

I have been speaking- of the course of the ordinary business of 
Congress. Upon the great questions which move the heart of the 
nation and divide political parties, the bod}- of the House and its 
leaders are commonly in full accord, and the representatives of 
the American people know how to make their power felt and as- 
sume their rightful and constitutional place in legislation. But 
even here it is not enough that the House preserves its power. 
The power to do what it will, and to refuse consent to what it 
will not, will not preserve its own dignity or its value as an impor- 
tant factor in legislation, unless its will is the result of its best 
judgment; in other words, unless it preserve its function as a de- 
liberative assembly. The difficulty is not that on great occasions 
and great questions the voice of the House is stifled. On' such 
occasions the House and its leaders are in accord with each other, 
and commonly in accord with a public sentiment which the Senate 
will not lightly resist. But the practice I have been exposing 
tends largely to take from the House the character of a delibera- 
tive assembly. The barren and empty privilege of originating 
bills of revenue and bills of supply it has purchased at the sacri- 
fice of that essential prerogative — essential to its own dignity and 
to that of every individual among its members — its freedom of 
debate. 

Let us pass now from the subject of monej' bills to a glance at 
the methods of general legislation. The morning hour of every 
Monday is devoted by the House to a call of all the States and 
Territories for the introduction of bills and joint resolutions. 
The House commonly takes care that every member has full 
opportunity to introduce as mam T bills as he desires. These bills 
are usually printed. The rule is peremptory that the}' shall be at 
once referred to their appropriate committees without debate and 
without the right to move to reconsider the vote of reference. 
Several thousand bills are introduced in this way in every Con- 
gress. Worthy citizens interested in special reforms are much 
gratified to read that their member has introduced some excellent 
and radical measures of reform. The bills themselves are copied 
by approving newspapers, and redound greatly to the credit of 
their enterprising authors. For all practical purposes, they might 
as well be published in a newspaper in New Zealand or Alaska. 
The processes by which these bills are strangled will be under- 
stood by comprehending the operation of the committees and the 
effect of the previous question. 



116 CONDUCT OF BUSINESS IN CONGRESS. 

The House has fortj'-seven permanent committees, and usually 
half a dozen special committees on important subjects. Appro- 
priation bills, revenue bills, contested-election cases, and resolu- 
tions authorizing the necessary public printing may be reported at 
any time. All other national legislation can only, under the rules, 
be reported from the appropriate committee when it is called by 
the Speaker for reports in its turn. For this call, an hour after 
the reading of the Journal, on every day except Monday and Fri- 
day, is set apart. Each committee is entitled, when it is called, 
to occupy this morning hour of each of two successive daj's with 
the measures which it has prepared, and, if its second morning 
hour expire while the House is actually considering one of its 
measures, to have that single measure hold over in the morning 
hour till it is disposed of. Supposing the two sessions wjrich 
make up the life of the House to last ten months, and allowing 
for the holidays, the time taken for organization and appointing 
committees, and the time when the four privileged subjects above 
named take up the attention of the House, so that the morning hour 
can not be devoted to this call, I suppose one hundred days in two 
sessions is an unusually large average of days when such a call is 
had. This gives an average of not more than two hours apiece to 
the committees of the House to report upon, debate, and dispose 
of all the subjects of general legislation committed to their charge. 
From this time is taken the time consumed in reading the bill, and 
in calling the yeas and nays, which may be ordered by one-fifth of 
the members present, and which requires forty minutes for a single 
roll-call. The members of the committees, of course, take special 
interest in the subjects assigned to them, which they have investi- 
gated and reported, and which they have prepared themselves to 
discuss. It will readily be believed, therefore, that the House is 
inclined to shorten rather than to lengthen the time given to any 
one matter — each member eager that the committee holding the 
floor shall give way as soon as possible, that the call may go on 
and his own committee's turn come the sooner. The committee 
holding the floor, if it have several measures matured, desires to 
hurry each along as fast as possible, that it may dispose of the 
others. After the bill is reported, the member reporting it is en- 
titled to the floor for an hour. If the previous question is ordered, 
he has a further hour to sum up. No amendment can be offered 
till the member's first hour is over, and none after the previous 



CONDUCT OF BUSINESS IN CONGRESS. 117 

question is ordered. The result is, that the floor is held by the 
member who made the report, and parceled out by yielding por- 
tions of his time to persons who desire to speak for or against the 
measure. The sense of fair play in the House usually secures an 
equal division of the time allowed for debate between friends and 
foes. But the person who reports the bill dictates how long the 
debate shall last, who shall speak on each side, and whether any 
and what amendments shall be offered. Any member fit to be in- 
trusted with the charge of an important measure would be deemed 
guilty of an inexcusable blunder if he surrendered the floor, which 
the usages of the House assign to his control for an hour, without 
demanding the previous question. The House in rare instances 
refuses to grant the demand, but this is at the hazard of prolong- 
ing debate indefinitely, which, for the reason above stated, is usu- 
ally the last thing which any considerable number of members 
desire. Another expedient is more frequent. A minorit} T who 
wish to secure a chance to debate or amend a specially obnoxious 
bill sometimes bring the majority to terms by what is called filibus- 
tering, that is, consuming time by repeated motions to adjourn, on 
which the yeas and nays are called, so that no progress is made 
in business until the majority grant time for debate or agree to 
test the sense of the House b}' permitting an amendment to be 
moved. These difficulties, which stand in the way of the intro- 
duction of bills in the regular mode under the rules, and beset 
them after they are introduced, have led to another device by 
means of which a large proportion, perhaps a majority, of all the 
bills which pass the House are carried through. Eveiy Monday 
after the morning hour, and at any time during the last ten days 
of the session, motions to suspend the rules are in order. At these 
times anj' member may move to suspend the rules and pass any 
proposed bill. It requires two- thirds of the members voting to 
adopt such motion. Upon it no debate or amendment is in order. 
In this way, if two- thirds of the body agree, a bill is by a single 
vote, without discussion and without change, passed through all the 
necessary stages, and made law so far as the consent of the House 
can accomplish it ; and in this mode hundreds of measures of vital 
importance receive, near the close of exhausting sessions, without 
being debated, amended, printed, or understood, the constitutional 
assent of the representatives of the American people. 

In administering this system, the general outline of which I 
have given, many subtle and artificial constructions and distinc- 



118 CONDUCT OF BUSINESS IN CONGRESS. 

tions have been established, which it is not necessary to deal with 
here. I have failed to make myself understood if the reader has 
not seen how completely, by its own rules, the House has deprived 
itself of "that freedom of deliberation, speech, a*nd debate" which 
our early American constitutions declare to be "essential to the 
rights of the people." This result has been brought about by 
what is called " the previous question" — a guillotine which is in 
constant operation. 

The Senate, on its first organization in 1789, adopted by its 
rules the previous question as used in the House of Commons. 
On the 17th of March, 1806, it established a new code of rules in 
which no mention is made of the previous question ; but the 
eighth rule was as follows : 

While a question is before the Senate, no motion shall be 
received, unless for an amendment, for postponing the question, 
or to commit it, or to adjourn ; and the motion for adjournment 
shall always be in order, and shall be decided without debate. 

By this rule the Senate abolished the previous question alto- 
gether. For seventy-two years there has been no restraint in that 
body upon the liberty of debate and the power of amendment. 
Mr. Foot of Connecticut proposed, on the 23d of Januaiy, 1832, 
that the question of consideration should be decided without 
debate. This was denounced by Mr. Benton as an invasion of 
the liberty of speech, and was not pressed. 

In 1841, after twelve years of Democratic rule, the Whigs took 
possession of the Government, with a majority of nearly fifty in 
the House and of seven in the Senate. On the 6th day of July, 
at the extra session, the rules of the House were amended by 
adding that the House might, "by a majority vote, provide for 
the discharge of the Committee" (of the Whole) "from the con- 
sideration of any bill referred to them, after acting without debate 
upon all amendments pending and that may be offered." This 
was carried by a vote of 117 to 95, after a considerable struggle. 
John Qnincy Adams speaks of it in his diary as "a new screw." 
* * * * * * * * . * 

Immediately after the declaration of the vote, Mr. Lott Warren 
of Georgia, with a view, as he said, "to carry out the reform 
which had been begun," announced his purpose to offer as an 
amendment to the twenty-eighth rule : "And that no member be 



CONDUCT OF BUSINESS IN CONGRESS. 119 

allowed to speak more than one hour to any question under debate." 
This was adopted on the following da}", June 7th; yeas 111, nays 
75. Mr. Adams records in his diary: " I voted against the reso- 
lution, but hope it will effect much good." On the 8th of June, 
the House being in committee on the loan bill, while Mr. Pickens 
was speaking in opposition, the Chair reminded him that his hour 
was out. Mr. Pickens denied that the House had any constitu- 
tional right to pass such a rule. The Chair again reminded Mr. 
Pickens that he had spoken an hour. Mr. Pickens would then con" 
elude by saying that it was the most infamous rule ever passed 
by any legislative body. 

With this ineffective remonstrance the minority of the House 
submitted to the inauguration of the practice, which has ever since 
prevailed with constantly increasing strictness. I suppose the large 
majority of measures which pass the House of Representatives are 
passed on motion to suspend the rules and adopt the bill, on which 
motion neither debate nor amendment is permitted, or under the 
previous question, moved by the member who introduces the meas- 
ure at the time of its introduction, either wholly without discussion 
or amendment, or with only so much of either as the mover, in his 
discretion, sees fit to allow. 
******** * 

One other peculiarit}* of the conduct of business in the House, 
under its present methods, is the absence of responsible leader- 
ship. In the British Parliament, the whole executive power of the 
Government is lodged. The prime minister, if a commoner, is the 
recognized leader of the majority of the House of Commons ; if 
he is a peer, the function of leadership of that House is vested in a 
member of the Government, selected for that purpose usually for 
his tact and ability in debate. Differences of opinion, jealousies, 
struggles for personal advancement, distract the counsels of po- 
litical parties in England as the}' do with us ; but they are 
reserved for the secrecy of cabinet discussions, and are not 
permitted to show themselves in public in the House. 

Lord Palmerston's diary for May 22, 1828, gives a curious ac- 
count of the conduct of business in the cabinet, of which he was 
n member : 

The cabinet has gone on for some time past as it had done be- 
fore, differing upon almost every question of any importance that 
has been brought under consideration ; meeting to debate and dis- 
pute, and separating without deciding. 



120 CONDUCT OF BUSINESS IN CONGRESS. 

/ 

To this Sir Henry Bulwer adds : 

I can not help observing, with reference to the sentence last 
quoted, that the father of the late Lord Holland, who had lived 
almost all his life with cabinet ministers, once said to me that he 
had never known a cabinet in which its members did not dispute 
more among themselves during their councils than they disputed 
with their antagonists in the House of Commons. 

These discords disappear when the measures of the Government 
are brought into the publicity of the House of Commons. Her 
Majesty's Government are responsible for the due preparation of 
all important measures. B3* the standing orders the right is 
reserved to her Majesty's ministers of placing Government orders 
at the head of the list on every order day except Wednesda}* ; 
and near the close of the session this precedence is extended to 
other days, and sometimes to Wednesdays. In our House the 
business suffers from the want of some such arrangement. All 
subjects of legislation are parceled out among the different com- 
mittees. Each of these almost comes to regard itself as a little 
legislature, and contends with great jealous}* against encroach- 
ments on its own jurisdiction. 

With rare and conspicuous exceptions of persons who bring to 
the House when they enter it a reputation which insures them a 
place at the head of some important committee, the members 
attain places of influence on these committees by seniority. The 
House becomes in this way a sort of presbytery, the senior mem- 
ber of each leading committee having special influence over his own 
subject. The result is, that there is a struggle between the differ- 
ent leading committees for the opportunity to bring their questions 
before the House. Toward the close of the session this contest 
becomes specially apparent. A member who has carefully pre- 
pared some important measure, with which he is identified in 
public estimation, feels that the success or failure of his political 
career depends upon his getting an opportunity to bring it to a 
vote. As the termination of the session approaches, the appro- 
priation bills press for passage. The rules of the House give the 
Committees on Appropriations and on Ways and Means, who have 
charge of the kindred measures of revenue, the right to report at 
any time when a member is not speaking. The right to report 
from a conference committee is even more highly privileged, and 
may be exercised when a member is actually on his feet in the 



CONDUCT OF BUSINESS IN CONGRESS. 121 

midst of a speech. The chairman of the Committee on Appro- 
priations, who may be held responsible if one of the great bills 
under his charge fails, and an extra session is made necessary, 
feels that he must use his power without much mercy. The result 
is, that he becomes almost the natural enemy of every other impor- 
tant bill before the House. 
***** **** 

It would be easy to multiply instances. The strength of the 
personal influence of able and popular men is and must be very 
great in a body composed as is our House of Representatives. 
But there is no man on the floor whose position gives him the right 
to lead ; no man who is responsible that each measure receives its 
due share of attention ; no man of prominence who is not likely 
to have matters under his special charge which, in the struggle for 
the command of the previous hours when the session draws near 
its end, tempt him to thrust out of the House other measures of 
equal public consequence. 

It is needless to set forth at length the evils which this state of 
things brings forth. There is one which I regard as peculiarly 
unfortunate for the character and dignity of the House, and whose 
bad consequences can hardly be overstated. It is that almost in- 
evitably the Speaker of the House is forced into the position of a 
party leader. 

The space of this article will not allow me to point out other 
kindred evils that have grown up in the recent practice of the 
House of Representatives. Those to which I have called atten- 
tion are the most important, and are growing year by } T ear. The 
House is losing its freedom of debate, of amendment, even of 
knowledge of what it is itself doing. A member is almost the 
last person to ask what is contained in an appropriation bill on its 
final passage. More and more the contest over important meas- 
ures is a contest, not whether the}' shall be discussed, but whether 
they shall be brought to a vote. The Speaker becomes a party 
leader, while obliged to observe form's of impartiality. There is 
nowhere responsibility for securing due attention to important 
measures, and no authority to decide between their different claims. 

The chairman of the principal committee becomes almost the 
natural enemy of every other committee in the House. 

I must take another occasion to deal with the question of rem- 
edy for these evils. I do not believe in radical changes in the 



122 CONDUCT OF BUSINESS IN CONGRESS. 

i » 

institutions of the state, contrived by doctrinaires. The practice 
of the House of Representatives is a growth, not a scheme. Still 
less would I urge a blind reverence for English examples. But if 
we could in some way secure a Speaker who should be absolutely 
independent of party it would be a great gain. If the three com- 
mittees, Ways and Means, Appropriations, Banking and Currency, 
could be blended in one, as formerly, the number of this committee 
to be at least fifteen, dividing its functions among sub-eommitees, 
the chairman never himself to have charge of an Appropriation 
bill, but to be responsible for the order of business of the itouse 1 , 
subject, of course, to the control of the body itself, a great step 
in efficiency would be gained. 

But the great point, the restoration to the House of its function 
of a deliberative assembly, can . only be fully accomplished by a 
reduction of its members. I know the strong objections to this 
reduction. For obvious reasons, it is not likely to receive the 
assent of the House itself, until demanded by an irresistible public 
opinion. That demand may be long delayed, perhaps avoided 
altogether, by making provision for removing from Congress the 
consideration of private claims, thereby diminishing the pressure 
of business, and by a reorganization of the system of committees, 
which shall give the House the benefit of responsible leadership. 



IX. 

THE HOUSE OF REPRESENTATIVES. 



[From "The Nation," April 4, 1878.] 

Although the galleries of the House are daily crowded, very 
few of the American people have a clear idea of the conditions 
under which work is done there. A vague opinion is prevalent 
that a member of Congress can take the floor when he pleases, 
move an}' resolution or bill he has a mind to, and make an hour's 
speech on any subject he fancies his constituents in Buncombe 
County may want discussed. A reading of the Congressional 
Record or the Associated Press despatches is quite as likely to 
: confirra as to weaken this opinion ; for in the varied phenomena 
that are presented it would need a Darwin or a Huxley so to 
co-ordinate them as to find any governing rule or law, or even to 
guess at the system on which the phantasmagoria is constructed. 
Yet there is a S3 T stem and a law, or rather a code of laws, known 
as the Rules of the House, complex and voluminous, the long 
and patient stud}- of which, joined to patient and persevering 
practice, is absolutely necessaiy if a Representative has any 
ambition to become a "good parliamentarian," or would hope to 
conduct an important measure to a successful conclusion. 

Many a new member, with a budget of bills and resolutions 
which he fondly believes are destined to reveal to the country its 
future great statesman, has entered the Hall of the House in 
undoubting faith that he has passed the portals of a brilliant 
career. He rises in his place and addresses the Chair. He is 
sure he was up as quickly as any one, but the Speaker seems 
unaware of his existence. He is a little dazed by the fact that a 
dozen more are doing the same thing, and that the loud talking, 
the clapping of hands for the pages, and the total unconsciousness 
of the body that he is trying to gain an audience, make a com- 
bination of untoward circumstances very like trying to address 
the people in the omnibuses from the curbstone in front of the 
Astor House, and he takes his seat a little flustered, thinking he 
will watch the course of things a little and try it again. The 



124 THE HOUSE OF REPRESENTATIVES. 

next time he determines that he will not be foiled by modest}*, and 
shouts "Mr. Speaker" so loudly that, as much to be rid of him as 
for airvthing else, he is recognized by the Chair. "I desire to 
present a resolution and ask its adoption." "It can only be done 
at this time by unanimous consent," the Speaker replies, and 
"I object" is heard from several members at once. Some one 
else is given the floor, and our friend subsides again to reflect 
upon the cruel obstacles in his path of glory. By the help of 
diligent thumbing of the Rules, and by curbing his pride so as to 
seek some advice of an old member, he learns that the Roll of 
the States will be called on Monday and then he will be in order. 
He plucks up fresh courage and on that day is on the alert, his 
State is called, he gets the floor, sends his resolution to the clerk 
and clears his throat for a speech. A sharp rap of the gavel is 
followed by "No debate is in order; the resolution can only be 
referred to the proper Committee," and before he can rightly 
understand what has happened the current has swept by him, and 
he takes his seat with a waning sense of his own importance. 
But he will not give it up so. He finds what committee has 
charge of his precious resolution, and tries to impress its chair- 
man with the importance of his measure. "Bless you," he is told, 
"there are fifty on the same subject; they will go to a sub-com- 
mittee, and by and by we may report something. Wait and see." 
He waits, and a month or more afterward he some morning 
catches a few words of a report from that committee, which imply 
that they have introduced a bill which is ordered to be printed 
and recommitted. He gets a copy of the bill, finds it at war with 
all his ideas, and burns with the thought of exposing its folly and 
vindicating the wisdom and police* of his own proposition. Now r 
at least, he will be in order and shall be heard. Still there are 
dela3 r s, but a day is set for discussion, and he is fully prepared. 
One speaker after another is recognized, but he fails to get the 
floor. His shouts to the Speaker are unnoticed ; he becomes 
angry and flurried. Some one asks him if he has any arrange- 
ment with the committee or with the Speaker for time to speak. 
No, he answers ; but has he not the right to be heard ? No ; 
debate is almost always limited to the members of the committee 
having the measure in charge and a few whom they may favor 
with the opportunity to speak. His wish to be heard at last over- 
comes his pride and wrath, and he is introduced to some member 



THE HOUSE OF REPRESENTATIVES. 125 

of the committee, who is good-humored enough (exceptionally 
good humored) to yield the new man a few minutes of his time. 
And so he gets a tithe of the time he wanted to develop his sub- 
ject, and under nervous condition, which forbid thought, amid 
surroundings to the last degree discouraging, he says a few words 
without pleasure to himself or profit to the House, and resumes 
his chair full of inward objurgations at a system which seems 
ingenious!}' contrived to prevent the satisfactory discussion of 
public business, and to give exclusive control of what is done to 
the Speaker and the older members of the majority who are chair- 
men of the important committees. 

His own committee-work is probably quite as disgusting to him. 
He may have come to the House brimful of revenue reform, 
and find himself assigned as "end man" to the Committee on 
Expenditures in the Department of Justice, with nothing to do. 
He may have been a leading jurist of mature experience, but 
unless he has the touchstone of long service in the House he may 
wish in vain for a place on the Judiciary Committee ; he is buried 
in the Committee on Manufactures, which has but one meeting and 
never a report in a long session. If he is a member of the major- 
ity and has had some political prominence outside, his case is a 
better one, and 'some chance for important work inay be given 
him ; but even this may prove a delusion and a snare, as Mr. 
Ewing found to his cost at the present session, when his lack of 
knowledge of the rules gave his opponents an instant advantage 
of him, and put his resumption-repeal "in the nine holes," from 
which he could not take it till he yielded the terms of debate 
which were demanded, and surrendered all the expected eclat of a 
prompt passage of his bill under suspension of the rules. His 
experience only deepened the conviction of all the leading men 
of the House, that it is folly to trust the floor-management of an}' 
important measure to any other than an old hand. Compliments 
to prominent politicians who are new members must be given in 
some other way. 

The truth is that the rules and customs of the House are the 
result of a natural selection which, however we may scold at it, 
was the best the circumstances permitted. The practice may be 
modified or pruned a little, but no great change can be made till 
the circumstances are changed. The things most frequently and 
most justly complained of are the almost despotic power of the 



126 THE HOUSE OF REPRESENTATIVES, 

Speaker, the absorption of the lead in business by the older mem- 
bers of a few committees, and the absence of that kind of busi- 
ness debate which should characterize a really deliberating bod}'. 
Let us look a little at each of these. 

The power of the Speaker results from the functions directly 
committed to him. He appoints the committees. The Senate 
may elect them, but the House is too large a body for that. The 
log-rolling combinations that would come of an attempt at election 
would disgust the nation, and would render the organization of 
the House an almost endless task. The delay alone would be 
unendurable. But the appointment of the committees implies the 
distribution of work to every member. It means the determina- 
tion of the cast business shall take. It decides for or against all 
large matters of policy, or may so decide : for, while Speakers 
will differ one another greatly in force of character and in 'the 
wish to give positive direction to affairs, the weakest man cannot 
escape from the necessity of arranging the appointments with a 
view to the probable character of measures which will be agitated. 
This, however, is far from the measure of the Speaker's power. 
All rules are more or less flexible. The current of precedents is 
never consistent or uniform. The bias of the Speaker at a 
critical point will turn the scale. Mr. Randall as Speaker deter- 
mined the assent of the House to the action of the Electoral 
Commission. Had he wished for a revolutionary attempt to pre- 
vent the announcement of Hayes's election, no one who has had 
experience in Congress, at least, will doubt that he could have 
forced the collision. 

The Speaker's power to award the floor to those whom he may 
choose to recognize is an enormous one. There are general rules 
which every Speaker will profess to follow, but they are vague 
and give abundant latitude. The necessity of getting on with 
business has given birth to the practice of recognizing the chair- 
men of leading committees, or those in charge of important 
pending measures, in preference to other members. The nominal 
rule is that the man first addressing the chair has the right to the 
floor, but the rule is only nominal. It is so evident that business 
could not get on in that way that a member would only be laughed 
at for trying to insist upon it- Again, it is very rarely the case 
that several persons are not trying to get the floor at once, and no 
one but the Speaker could decide among them. An appeal from 
his decision therefore would be futile. The custom has naturally 



THE HOUSE OF REPRESENTATIVES. 127 

growD out of this to arrange with the Speaker beforehand for 
recognition. A member will speak to him privately and in ad- 
vance, saying, I have such and such a measure to introduce, and 
I want to be recognized when I rise. A fair-minded Speaker will 
only enquire far enough to see that the matter is legitimate and 
important ; but if he is unscrupulous it is easy to see how far his 
power may go. Rumor has it that when Mr. Blaine was Speaker 
it was hard to get the floor unless the thing to be urged pleased 
him, and it is even hinted that he required amendments to be 
made to resolutions, etc., before he would permit them to be 
offered. Whether this is true or not, it is easy to see that a 
vigorous, domineering man could easily make it true with such 
power in his hands. The only real check upon the Speaker must 
be the public sentiment of the House, and the older members are 
the natural exponents and voices of this. The minority can do 
little to check him until his acts become so arrogant and partial 
as to shock the moderate men of the majority. The leading men 
of the dominant part}* are always those whom the Speaker has 
assigned to important chairmanships of committees, and they are 
prevented by delicacy and a sense of obligation from opposing 
him if it can be avoided. A disappointed man will be sure to 
have his hostility to the Chair attributed to his failure to get an 
important place, and he will get little sympathy. There is, there- 
fore, small chance for controlling the power of the presiding 
officer until he goes beyond all endurable bounds, and this a 
man of an}' prudence and ability will rarely do. The power of 
the Speaker of the House over legislation may not unfairly be 
reckoned much larger than that of the President, and scarcely less 
than that of the Senate. To this we have come b} T the slow 
growth of a hundred years, accelerating, however, as the numbers 
of the members of the House have increased. 

The power of the chairmen of committees follows as a sort of 
corollary from that of the Speaker. Their leading influence elects 
him, his favor appoints them, and the latter, with the aid of the 
exigencies of public business, gives them the practical control of 
the floor. By custom the chairman of a committee appoints, or 
at least nominates, its clerk, and he has the lion's share of the 
clerk's labor and assistance. He has, therefore, better facilities 
for informing himself as to business before them. He distributes 
the work to sub-committees, and if he be at all able and politic 



128 THE HOUSE OF REPRESENTATIVES. 

will practically control the reports and the presentation of all 
business from his committee to the House. He will usuall}- decide 
who shall speak on a measure, how long the debate shall continue, 
when the previous question shall be called, and how the hour 
of debate which follows the ordering of the previous question 
shall be apportioned. If any one protests, the ready answer is, 
How else, in such a Babel, can business make progress at all? 
Some one must be trusted to direct it, and who so fit, under the 
superior power of the Speaker, as the chairman of the committee 
which had a measure in charge and is presumed to have matured 
it? 

Out of these conditions it would be hard, at best, to bring sat- 
isfactory and business-like debate. In the English House of 
Commons the Speaker is a professional moderator, non-partisan, 
judicial, holding his office sometimes during nearly a lifetime, 
through all changes of party. The part}' leaders on the floor con- 
trol the presentation and debate of measures, and have the rules 
applied for them by an experienced man acting with a sense of 
responsibility like that of a judge. Under such a system, aided 
by a better set of physical surroundings, of which we shall speak 
presently, it is for the interest of party leaders that the}' shall bring- 
out the available talent on their side, and in practice the impa- 
tience of the House of Commons with a tedious speaker or one 
talking only "for buncombe" is a sufficient gag-rule. With us, 
however, impatience rarely takes the active, aggressive form of 
coughing or scraping a speaker down. If a member of the House 
of Representatives does not choose to listen, he has his desk, his 
writing material, his file of letters to answer, his own speech to 
prepare, and works away careless whether the day is used up in 
one way or another, until he begins to fear that he shall not get 
away from the capital before the dog-days. Even then he is 
more likely to go and scold privately at the chairman of the Com- 
mittee on Appropriations for not hurrying bills along faster, than 
to interrupt or try to silence the talker on the floor. It is in this 
way that the habit of inattention, of noisy side-talk, of utter dis- 
regard to the person having the floor, has grown up. It has nat- 
urally led also to the custom of writing out speeches and reading 
them. A member is determined to be heard by the. country, or 
at least by his constituents, if the House will not hear him, and 
he reads on amidst utter confusion, consoling himself that his 



THE HOUSE OF REPRESENTATIVES. 129 

speech will be in the Congressional Record, an abstract of it in 
the press despatches, and pamphlet copies can be sent to his 
people at home. To prove that this kills debate needs no argu- 
ment. The dullness of the reading of essays reacts upon the dis- 
position to inattention, and the noise and confusion increase the 
disposition to write rather than to try to speak, and so the evil 
perpetuates itself, getting larger as it goes. From it comes, too, 
the custom of getting leave to print speeches not delivered. Why 
should the House remain to go through the form of pretending to 
be addressed by a reader who is not heard? Somebody will 
exclaim, "O print, print !" and the unhappy essajist will be glad 
to take the hint and ask the requisite permission. There are times, 
of course, when this is not improper or objectionable, as when 
an important measure is passing almost without time for debate, 
whilst members feel unwilling to let their votes go upon record 
wholly unexplained, or to be regarded as responsible for the 
motives or arguments that the press may attribute to them. 

Even when a man would fain take part in earnest, business-like 
speech, the physical conditions about him are such as are almost 
insurmountable. First, the hall of the House is itself so large 
that few men have voice enough to fill it, even if quiet prevailed 
on the floor.* If every member must have his desk, and the hall 
must be surrounded on all sides by deep galleries, no less a room 
would answer ; and hy the same token, as we increase the number 
of members, the Coliseum itself would soon be none too large. 
But the noise of the House is simply overpowering. In so large 
a room the loud conversation of disorderly members does not 
reach the ear distinctly, but the multiplicity of such sounds, 
added to the manifold forms of noise which the inattentive habits 
of the body beget, combine into a loud, murmurous roar, which 
makes one who is beginning to speak feel as if his voice were lost 
in a tempest or in the noise of surf upon the shore. He instinct- 
ively tries to rise his tones above it, and to catch attention b}' 
extraordinary effort to be loud. He is shouting before he knows 
it, and vainly struggling to drown a multitudinous sound for 
which his lungs are no match. Men of fine intellect and of good 
ordinary elocution have exclaimed in despair that in the House 

* The hall of. the House of Representatives is 139 feet long and 93 feet wide ; that 
of the House of Commons is 60 feet long and 45 feet wide. The H. of R. has less 
than half as many members as the H. of C. 



130 THE HOUSE OF REPRESENTATIVES. 

of Representatives the mere physical effort to be heard uses up 
all the powers, so that intellectual action becomes impossible. 
The natural refuge is in the written speeches or in habitual silence 
which one dreads more and more to break. The exceptions only 
prove this rule. Passages-at-arms between gladiators of the stump 
will generally draw around a crowd of amused lookers-on. A 
special reputation for wit or for ugly hits will secure a hearing. 
And occasionally the pre-eminent ability of a speech may over- 
come all obstacles and fasten attention. 

Experienced members of Congress commonly agree that the 
debates in Committee of the Whole under the five-minute rule are 
the most profitable that occur in the House. The real shaping of 
measures occurs at this time, and attention is better given, 
because all members who feel any responsibility for business know 
that they must watch at such times if the}' would act intelligent^. 
The short limit of time necessitates an attempt at terseness, the 
game of "give and take" between speakers is likely to be lively, 
and something like a real grappling between opponents takes 
place. This only adds point to what has been said above about 
the failure of business debate in the House, for the exception does 
not occur when the House is in regular session, but when it is in 
committee — that is to say, the Speaker has left the chair, calling 
some one to act as temporary chairman of the committee ; and 
during this time no vote by yeas and nays can be taken, no busi- 
ness can be considered but the bills in their order on the calender 
as they have been referred by the House to the committee, and no 
final action can be taken except to report to the House when it 
resumes its regular session the recommendations of the Committee 
of the Whole. 

A suggestion has been made by Mr. Hewitt, of New York, 
which, if adopted, would remedy most of the physical obstables 
to debate which have been described, and would soon improve the 
style of speaking, making the House a far more attractive field for 
able men. The plan is to divide the hall of the House in two, ar- 
range one-half of it with benches facing each other on the two sides 
of the House, as is the case in the English House of Commons. 
This half of the House should be sacred to debate. No business 
should be done there but the discussion of bills and resolutions 
and action upon them. Quiet and order should be rigidly en- 
forced. The other half of the hall should be fitted with the pres- 



THE HOUSE OF REPRESENTATIVES. 131 

ent or other similar conveniences for writing, and for conversation 
and such other business as the members now transact at their 
desks or in the lobbies. At the doors leading from the one hall 
to the other should be a gong or bell to notify members when a 
division was demanded or a vote to be taken. Those who chose 
to listen would be in the hall with benches ; those who had more 
important work to do could remain in the outer hall. The attrac- 
tiveness of the speaker who might be up, or the importance of 
the subject, would determine the audience in the speaking-hall, 
and the leaders or chairman of the committee in charge of the 
special measure would, as now, control the length of the debate. 
With such a change would come ease of speaking, quieter tone, 
better thinking on the feet, better taste in oratory, better progress 
in everything that makes profitable business discussion, and better 
progress also in the public business. We could wish there were 
hope that men enough in Congress appreciate the great desira- 
bility of these things to make a fair trial of the experiment. 



X. 

KULES OF THE HOUSE OF COMMONS RELAT- 
ING TO "OBSTRUCTION" AND TO ORDER 

OF BUSINESS. 



46. The time for the Ordinary Meeting of The House (except 
on Wednesday* or any day appointed for a Morning Sitting) is 
at a quarter before Four o'clock, unless some other time shall 
have been agreed upon. 

67 A. No motion for the Adjournment of the House shall ) be 
made until all the Questions on the Notice paper have been dis- 
posed of, and no such motion shall be made before the Orders 
of the Day or Notices of Motion have been entered upon, except 
by leave of the House, unless a member rising in his place shall 
propose to move the Adjournment for the purpose of discussing a 
definite matter of urgent public importance, and not less than 
Forty Members shall thereupon rise in their places to support the 
motion ; or unless, if fewer than Forty Members and not less than 
ten shall thereupon rise in their places, the House shall, on a 
division upon a question put forthwith, determine whether such 
motion shall be made. [1882.] 

67 B. When a motion is made for the Adjournment of a debate, 
or of the House during any debate, or that the Chairman of a 
Committee do Report Progress or do leave the Chair, the debate 
thereon shall be confined to the matter of such motion ; and no 
Member having moved or seconded any such motion shall be 
entitled to move, or second, any similar motion during the same 
debate. [1882.] 

67 C. If Mr. Speaker shall be of opinion that a motion for 
Adjournment is an abuse of the rules of the House, he may forth- 
with put the question thereupon. [1882. Applies also in Com- 
mittee.] 

69 A. If at any sitting of the House any Member shall take 
notice that Strangers are present, Mr. Speaker shall forthwith put 

* On Wednesday The House meets at 12 o'clock and is adjourned, by Standing 
Order, at 6 o'clock. 



RULES OF THE HOUSE OF COMMONS. 133 

the Question that Strangers be ordered to withdraw, without per- 
mitting an}- Debate or Amendment. [1882. Applies also in 
Committee.] 

82. An}* Member present in the House at Prayers, is entitled 
to secure a place by affixing his name to a seat. 

85. A member not having been present at Prayers, is not enti- 
tled to retain any seat during his absence ; but he is generally per- 
mitted, by courtesy, to secure it by leaving upon it a book, a hat, 
or a glove. 

87. The front bench, on the right hand of the Chair, is reserved 
for Members holding office under the Crown ; and the front bench 
on the left hand of the Chair is ordinarily occupied by Privy 
Councillors and other Members who have held office under the 
Crown. 

98. The House generally proceeds each day with (1) Private 
Business; (2) Public Petitions ; (3) Giving Notices of Motions ; 
(4) Unopposed Motions for Returns ; (5) Motions for leave of 
Absence; (6) Questions [addressed to Ministers] ; (7) Orders of 
the Day and Notice of Motions as set down in the Order Book. 

99. Any Member desiring to give Notice of a Motion msij 
enter his name on the Notice Paper placed upon the Table of 
the House. 

100. At the time for giving Notices the precedence of Mem- 
bers is determined by ballot (= lot) . 

105. [No notice to be given for any da} T beyond the next four 
Notice days (= Tuesdays)]. 

120. A question may be superseded : (1) By the Adjournment 
of The House, either on the Motion of a Member, "That this 
House do now adjourn," or on notice being taken, and it appearing 
that Forty Members are not present ; * * * * (3) By the Pre- 
vious Question, viz., "That this Question be now put" being pro- 
posed and negatived ; and (4) By Amendment. 

125 A. When it shall appear to Mr. Speaker during any 
Debate that the subject has been adequately discussed, and that 
it is the evident sense of The House that the Question be now 
put, he may so inform The House ; and if a Motion be made "that 
the Question be now put," Mr. Speaker shall forthwith put such 
Question ; and if the same be decided in the affirmative, the ques- 
tion under discussion shall be put forthwith : [Provided that the 
Question, That The Question be now put, shall not be decided in 
the affirmative, if a Division be taken, unless it shall appear to 



134 RULES OF THE HOUSE OF COMMONS. 

have been supported by more than two hundred Members, or unless 
it shall appear to have been opposed by less than forty Mem- 
bers, and supported by more than one hundred Members.] [1882. 
This rule applies also in Committee.] 

220 A. B. C. and D. [Provide for the appointment of two 
Standing Committees of not less than sixty and not more than 
eighty Members ; one for the consideration of bills relating to 
Law and Courts of Justice and Legal Procedure, the other for bills 
relating to Trade, Shipping and Manufactures. The Members to 
be nominated by a Committee of the House. All bills reported 
from these Committees are to be proceeded with as if reported from 
Committee of the whole House.] 



406. The House will receive no petition for any sum, or pro- 
ceed upon any motion for a grant or charge upon the Public Rev- 
enue, whether payable out of the Consolidated Fund or out of 
money to be provided by Parliment, unless recommended from the 
Crown. 

425 A. Whenever Committee of Supply stands as the first 
Order of the Day on Monday or Thursday, Mr. Speaker shall leave 
the Chair without putting any question, unless * * * an Amend- 
ment be moved relating to the Estimates proposed to be taken in 
Supply. [1882. ''Grievance before Supply."] 



145. A Member is not to read his speech but may refresh his 
memory by reference to notes. 

148. When two or more members rise to speak, Mr. Speaker 
calls upon the Member who first rose in his place. 

159. A new Member who has not yet spoken is generally called 
upon, by courtesy, in preference to other members rising at the 
same time. 



152 A. Mr Speaker may call the attention of the House to con- 
tinued irrelevance or tedious repetition on the part of a member; 
and may direct the Member to discontinue his speech. [1882.] 

173 A. [1882. Any member "named" for disregarding the 
authority of the Chair, or for abusing the rules of the House by 
persistently and willfully obstructing business, may be "sus- 
pended from the service of the House" ; the first suspension to be 
for a week, the second for a fortnight, and later ones for a 
month.] 



XI 

JURISDICTION OF UNITED STATES' COURTS 
AND OF STATE COURTS. 



[From Cooley's Constitutional Law in the United States : 
Little, Brown, & Co., Boston. The foot-notes 

AND REFERENCES TO CASES ARE OMITTED.] 

The judicial power of the United States is commensurate with 
the ordinary legislative and executive powers of the general gov- 
ernment, and the powers which concern treaties ; but it is also 
still broader, and in some cases is made to embrace controversies 
from regard exclusively to the parties suing or sued, irrespective 
of the nature of the questions in dispute. The cases in which 
this authority has been given are cases in which the influence of 
state interests and jealousies upon the administration of state 
laws might possibly be unfavorable to impartial justice, and which 
for that reason it was deemed wise to remove to the federal juris- 
diction. 

Laws for its Exercise. — But although the Constitution extends 
the power to the cases specified, it does not make complete pro- 
vision for its exercise, except in the few cases of which the Su- 
preme Court is authorized to take cognizance. For other cases 
it is necessary that courts shall be created by Congress, and their 
respective jurisdictions denned ; and in creating them Congress 
may confer upon each so much of the judicial power of the 
United States as to its wisdom shall seem proper and suitable, 
and restrict that which is conferred at discretion. In doing so it 
may apportion among the several federal courts all the judicial 
power of the United States, »or it may apportion a part only, and 
in that case what is not apportioned will be left to be exercised by 
the courts of the States. Thus the States may have a limited 
jurisdiction within the sphere of the judicial power of the United 
States, but subject to be further limited or wholly taken away by 
subsequent federal legislation. Such is the state of the law at 
this time : many cases within the reach of the judicial power of 



136 JURISDICTION OF COURTS. 

the United States are left wholly to the state courts, while in 
many others the state courts are permitted to exercise a jurisdic- 
tion concurrent with that of the federal courts, but with a final 
review of their judgments on questions of federal law in the 
United States Supreme Court. 
****** *** 

These reasons, however', do not apply to the original jurisdiction 
over a case, but only to the final application in the case of the rule 
of law that shall govern it. The full purpose of the federal 
jurisdiction is subserved if the case, though heard first in the state 
court, ma} T be removed at the option of the parties for final deter- 
mination in the courts of the United States. The legislation of 
Congress has therefore left the parties at liberty, with few excep- 
tions, to bring their suits in the state courts irrespective of the 
questions involved, but has made provision for protecting ' the 
federal authority by a transfer to the federal courts, either before 
or after judgment, of the cases to which the federal judicial power 
extends. The exceptions will appear as we proceed. 

A case may be said to arise under the Constitution, or under a 
law or treat}', when a power conferred or supposed to be, a right 
claimed, a privilege granted, a protection secured, or a prohibi- 
tion contained therein, is in question. It matters not whether the 
party immediately concerned be the United States, in its sover- 
eign capacity, asserting one of its most important powers, or a 
State defending what it believes to be its own reserved jurisdiction, 
or a humble citizen contending for a trivial interest: if the case 
turns wholly or in part on the interpretation or application of 
the Constitution, the validit} T or construction of an enactment of 
Congress, the force or extent of a treaty, the justification of any 
act of a federal officer or agent by the federal authority under 
which he assumes to act, or the validity of any state enactment, 
or any act under supposed state authority, which is disputed as an 
encroachment upon federal jurisdiction, or as being expressly or 
by implication forbidden by the federal Constitution, — in each in- 
stance the case is fairly within the intent of the provision under 
consideration, and within its reason and necessity. 

To give the necessar}' effect to this provision it has been pro- 
vided that "a final judgment or decree in any suit in the highest 
court of a State in which a decision in the suit could be had, 
where is drawn in question the validity of a treat}' or statute of, or 



JURISDICTION OF COURTS. 137 

an authority exercised under, the United States, and the decision 
is against their validity ; or where is drawn in question the valid- 
ity of a statute of, or an authority exercised under, any State, on 
the ground of their being repugnant to the Constitution, treaties, 
or laws of the United States, and the decision is in favor of their 
validity ; or where any title, right, privilege, or immunity is 
claimed under the Constitution, or any treaty or statute of, or 
commission held or authority exercised under, the United States, 
and the decision is against the title, right, privilege, or immunity 
specially set up or claimed by either party, under such Constitu- 
tion, treaty, statute, commission, or authority, may be re-exam- 
ined, and reversed or affirmed in the Supreme Court [of the United 
States] on a writ of error." 

A careful reading of this statute will show that the review in 
the federal Supreme Court is only provided for, when the decision 
in the state court is against the title, right, privilege, or immunhry 
set up or claimed under the federal authorit}^. Where the decision 
does not deny what is thus claimed, the reason for a review is want- 
ing. Nor is it sufficient to authorize the removal of the case to 
the federal Supreme Court that some one of the enumerated ques- 
tions might have arisen in or been applicable to it ; it must appear 
by the record itself, either expressly or by clear and necessary 
intendment, that some one of them did arise in the state 
court, and was there passed upon, and the right, title, privilege, 
Or immunity denied. 

Cases affecting Ambassadors, etc. — In all cases affecting ambas- 
sadors, other public ministers and consuls, and those in which a 
State shall be a party, the Supreme Court has original jurisdiction. 
These are the 011I3' cases in which original jurisdiction is conferred 
upon that court, and it cannot be extended by statute. There- 
fore the court cannot have jurisdiction to issue the writ of manda- 
mus to one of the heads of the executive department, or a writ of 
certiorari to one of the district judges sitting as commissioner un- 
der a treaty, or to a military commission ordered by a general 
officer of the United States army, commanding a military depart- 
ment which has tried and sentenced a civilian to punishment, or a 
writ of habeas corpus, except as an appellate process. The rule 
of construction that is applied in these cases is this : that the 
affirmative words of the Constitution, declaring in what cases the 
Supreme Court shall have original jurisdiction, must be construed 



138 JURISDICTION OF COURTS. 

negatively as to all other cases. Giving the Supreme Court origi- 
nal jurisdiction does hot exclude the jurisdiction of other courts, 
and therefore cases affecting foreign representatives may originate 
in other courts, but they will be subject in such courts to all the 
rules of privilege conferred b} T international law, and to the appel- 
late jurisdiction of the federal Supreme Court. And Congress in 
its discretion may, and it has done, exclude altogether the juris- 
diction of state tribunals over suits against foreign representa- 
tives. As the privileges of ambassadors, ministers, and consuls 
are conferred, not for their own advantage, but as the privileges 
of their government, it is fit and proper that the courts of the 
government to which the}^ are accredited, and with which alone 
they can have official dealings, should have exclusive cognizance 
of suits against them. , 

Admiralty and Maritime Cases. — * * * * The federal [ad- 
miralty and maritime] jurisdiction will therefore include the case of 
collisions on navigable lakes or rivers, of vessels engaged in com- 
merce between ports of the same State, and occurring within the 
body of a county, and also the case of contracts of affreightment, 
though to be performed within the State where made. So cases of 
collision of vessels passing from one navigable bod} T of water to 
another, through a connecting canal, like the Welland Canal, are 
of federal cognizance. And admiralty has jurisdiction of col- 
lisions occurring on tide-water, though the vessel be at a wharf or 
pier in the harbor. 

The general jurisdiction over the place within a State which is 
subject to the grant of admiralty power adheres to the territory, 
as a portion of the sovereignty not given awa}< , and the residuary 
powers of legislation remain in the States. Therefore the admir- 
alty jurisdiction does not divest the state jurisdiction to punish 
crimes. Neither does it divest the state jurisdiction to regulate 
the fisheries, and to punish those who trangress the regulations. 

Suits by and against the United States. — The United States, like 
any other sovereignty, is not suable in its own courts, except with 
its own consent ; but it may consent, as has been done by creating 
and defining the jurisdiction of the Court of Claims. Neither is 
the United States suable in a state court, for the United States is 
supreme within its sphere, and the States cannot subordinate it to 
their authority. It has been quite authoritatively conceded, how- 
ever, by the federal judiciary, "that land within a State, purchased 



JURISDICTION OF COURTS. 139 

by the United States as a mere proprietor, and not reserved or 
appropriated to any special purpose, may be liable to condemna- 
tion for street or highways, like the land of other proprietors, 
under the rights of eminent domain"'; and the concession will 
cover all cases of appropriations for public purposes. A right to 
appropriate implies a right to provide the means whereby a court 
may obtain jurisdiction, which in these cases may be some other 
means than the ordinary writs. But the States can have no right 
to appropriate an}' portion of the land which has been purchased, 
or otherwise acquired, by the United States, as a means in the 
performance of any of its governmental functions ; such as land 
held for a fortification, or for an arsenal and government manufac- 
tory of arms. 

As a corporation the United States may sue as plaintiff, in 
either its own or the state courts, or in the courts of a foreign 
country, as occasion ma}? require. 

Controversies between States. — Many questions might arise 
under this clause concerning the reach of the federal jurisdiction 
over controversies between States, the subjects that may be dealt 
with and determined, and how far the sovereign rights of the 
States, and the extent of their respective territorial jurisdictions, 
may be brought within the cognizance and final determination of 
the federal judiciary. The clause conferring jurisdiction of such 
controversies is general, and only as cases arise can it be deter- 
mined whether they present questions which are properly of 
judicial cognizance as between the States. A question of boun- 
dary is plainly such a question, and so is the question whether the 
conditions in a compact between two States, on the performance 
of which certain territory was to be detached from the one and 
become a part of the other, have ever been complied with, so as to 
effect the transfer. 

By "States," in the provision of the Constitution conferring this 
jurisdiction, is intended the States in the Union. An Indian tribe 
is neither a State in the Union in this sense, nor a foreign state, 
and entitled as such to sue in the federal courts. 

Suits against States. — The clause of the Constitution which at 
first conferred the federal jurisdiction extended to suits against 
States by other States, by citizens of other States, and by foreign 
states, citizens, or subjects. But by amendment to the Constitution 



140 JURISDICTION OF COURTS. 

this jurisdiction has been so limited as to be confined to suits 
brought by States in the Union, and by foreign states, and the 
States are no longer subject to be sued in the federal courts by 
private persons. But the fact that a State has an interest in the 
controversy, however extensive, will not bring the case under the 
amendment and exclude the federal jurisdiction so long as the 
State itself is> not a party. Therefore a state corporation may be 
sued in the federal courts, notwithstanding the State is the sole 
stockholder. It is not believed, however, that a State can be 
indirectly sued by making its agent or officer the nominal defen- 
dant, where the agent or officer merely holds the state propert} T or 
securities, or occupies a position of trust under the State, and in 
the performance of its duties commits upon others no trespass, so 
that the cause of action relied upon must be one in which he wpuld 
be responsible only as such agent, officer, or trustee. If such 
action were permitted, the eleventh amendment might be nullified. 
But where an officer makes himself a trespasser by attempting to 
enforce a void authority, it is immaterial to the jurisdiction who 
undertook to confer the void authority, since he is responsible in- 
dividually, on well settled common-law principles. 

The force of the eleventh amendment is restricted to original 
suits, and it does not preclude a review in the federal Supreme 
Court of decisions in the state courts where is drawn in question 
any title, right, privilege, or exemption under the Constitution, 
laws, or treaties of the United States. 

Other Controversies. — Where the jurisdiction of a case depends 
upon the citizenship of parties, the fact should appear on inspec- 
tion of the record. But citizenship in the sense of this provision 
means nothing more than residence. A resident in one of the 
Territories, or of the District of Columbia, is not entitled to sue 
or be sued as a citizen of the State. A corporation created by 
and transacting business within a State is for this purpose to be 
deemed to represent corporators who are citizens of the State, and 
a foreign corporation is to be deemed to represent corporators 
who are aliens. As a declaration of intention to become a citizen 
under the naturalization laws does not make one a citizen, it will 
not preclude an alien suing as such. The courts will not be open 
to suits by aliens when their countiy is at war with our own. 

Legislation assigning the Jurisdiction to Courts. — In the exer- 
cise of its authority to assign to courts such portion of the judicial 



JURISDICTION OF COURTS. 141 

power as it shall determine is proper or needful, Congress has pro- 
vided by law that the jurisdiction vested in the courts of the 
United States, in the cases and proceedings following, shall be 
exclusive of the courts of the several States : — 

1. Of all crimes and offences cognizable under the authority of 
the United States ; 

2. Of all suits for penalties and forfeitures incurred under the 
laws of the United States ; 

3. Of all civil causes of admiralty and maritime jurisdiction ; 
saving to suitors in all cases the right of a common-law remedy 
where the common law is competent to give it ; 

4. Of all seizures under the laws of the United States, on land 
or waters not within admiralty and maritime jurisdiction ; 

5. Of all cases arising under the patent-right or copy-right laws 
of the United States ; 

6. Of all matters and proceedings in bankruptcy; 

7. Of all controversies of a civil nature where a State is a party, 
except between a State and its citizens, and between a State and 
citizens of other States or aliens. 

Federal courts are also given original jurisdiction of causes of 
action arising under the postal laws ; suits for drawback of duties ; 
suits for violations of the statute of the United States for the pro- 
tection of civil rights, or for the deprivation of rights, privileges, 
or immunities secured by the Constitution or laws of the United 
States ; suits to recover the possession of an} T office, — except leg- 
islative offices and the office of Elector of President and Vice- 
President, — where the sole question touching the title thereto 
arises out of the denial of the right to vote to any citizen offering 
to vote, on account of race, color, or previous condition of servi- 
tude ; proceedings for the removal from office of any one holding the 
same contrary to the provisions of the third section of the four- 
teenth amendment ; and suits by or against the national banks. 

Also of suits at common law, where the United States, or any 
officer thereof, suing under authority of an act of Congress, is 
plaintiff; suits arising under the revenue laws; suits arising 
under any law relative to the slave trade ; and suits brought by 
any person to recover damages for an injury to person or property 
on account of any act clone by him under an}' law of the United 
States for the protection or collection of an}' of its revenues, or to 
enforce the rights of citizens of the United States to vote in any 
State. 



142 JURISDICTION OF COURTS. 

Also of suits of a civil nature, at common law or in equit} 7 , 
where the matter in dispute, exclusive of costs, exceeds the sum 
of five hundred dollars, and an alien is a party, or where the suit 
is between a citizen of the State where it is brought and a citizen 
of another State, and suits in equity where the matter in dispute, 
exclusive of costs, exceeds the sum or value of five hundred 
dollars, and the United States are petitioners. 

Transfer of Causes from State Courts. — As suits may be insti- 
tuted in the state courts in all cases in which the jurisdiction of the 
federal courts is not made exclusive, the purpose had in view in 
conferring the federal power would often be defeated if there were 
not some provision under which a cause brought in a state court 
might be removed to a federal court. For example, if a citizen of 
one State should bring suit in one of its courts against a citizen of 
another State, the case would be one which by the Constitution is 
embraced in the grant of the federal power ; and the reason why 
it was included is that it may sometimes happen that local feel- 
ings, sentiments, prejudices, or prepossessions may preclude a fair 
trial in the state court, or at least give rise to fears or suspicions 
that such may be the case. But it may be and is entirely proper 
to allow the suit to be thus brought in the first instance, because 
in most cases no such influences will be suspected or feared, and 
the parties would go to trial in the state court without objection. 
But if they are feared, the reasons for referring the case to the 
federal court are then apparent. A case of more importance to 
the federal jurisdiction is where a federal officer is sued in a state 
court, for some act or omission in his office. For many such acts 
or omissions there is no civil responsibility in am T court, but for 
some there is. The general rule is, that, if a duty imposed upon 
an officer is exclusively of a public nature, his neglect to perform 
it can only be punished by some proceeding, either civil or crimi- 
nal, instituted by the proper public authorities ; but if a duty is 
imposed upon him for the benefit of an individual, the latter has 
his private action to recover damages for any failure in per- 
formance whereby he is injured. The difference between the 
public and the private duties is well illustrated in cases arising 
under the post-office laws. The Postmaster-General has duties to 
perform, which are of high importance to the nation and to all its 
people ; but they are public duties exclusively, and he never 
becomes charged with obligations to any particular person, so as 



JURISDICTION OF COURTS. 143 

to be liable to individual actions. . It is different with a local post- 
master. When mail matter is received at his office, directed to a 
particular person, it becomes his duty to that person to deliver it 
on demand, and he is liable to a suit for damages in case of re- 
fusal. A like distinction exists between the duties of the Secre- 
tary of the Treasury .and the collector of the customs at a port : 
the former is responsible only to the government for the faithful 
performance of duty ; but the latter owes duties to those whose 
imported goods pass through his hands, and he may become liable 
to private suits for oppressive conduct and illegal charges. So 
the duties of the United States marshal, which resemble those of 
the sheriff, are to a large extent duties to individuals, and ma}' 
frequently subject him to suits. So any federal officer may 
become involved in private suits on allegations that, in the pre- 
tended discharge of duty, he has trespassed on the rights of third 
parties. All these, and many others which might be named, are 
cases coming within the scope of the federal judicial power, and 
many of them are cases in which it might be exceedingly important 
to the federal authority that they be referred to the federal courts 
for final adjudication. 

For these cases it is provided by statute that causes may be 
removed from state to federal courts where the amount in contro- 
versy exceeds five hundred dollars, in the following cases : — 

1. Where the suit is against an alien, or is by a citizen of the 
State wherein it is brought and against a citizen of another State, 
it may be removed on petition of the defendant. 

2. Where the suit is against an alien and a citizen of the State 
wherein it is brought, or is by a citizen of such State against a 
citizen of the same and a citizen of another State, it may be re- 
moved, as against such alien or citizen of another State, on his 
petition, and the case may proceed in the state court as against 
the other defendant or defendants. 

3. Where the suit is between a citizen of the State in which it is 

brought and a citizen of another State, it may be removed on 

petition of the latter, be he plaintiff or defendant, on his filing an 

affidavit that he has reason to believe, and does believe, that from 

prejudice or local influence he will not be able to obtain justice in 

such state court. 

*.* * * * * * * * 

Habeas Corpus. — The Supreme Court and the Circuit and Dis- 
trict Courts have power to issue the writ of habeas corpus, and the 



144 JURISDICTION OF COURTS. 

several justices and judges thereof, within their respective juris- 
dictions, have also power to issue it, for the purposes of an in- 
quiry into the cause of restraint upon liberty. But in no case 
shall the writ extend to a prisoner in jail, unless where he is in 
custody under or. by color of the authority of the United States; 
or is committed for trial before some court thereof; or is in cus- 
tody for an act done or omitted in pursuance of a law of the 
United States, or of an order, process, or decree of a court or 
judge thereof; or is in custody in violation of the Constitution, or 
of a law or treaty of the United States ; or, being a subject or 
citizen of a foreign state and domiciled therein, is in custody for 
an act done or omitted under any alleged right, title, authorit}^ 
privilege, protection, or exemption claimed under the commission 
or order or sanction of any foreign state, or under color thereof, 
the validity and effect whereof depend upon the law of nations ; or 
unless it is necessary to bring the prisoner into court to testify. 
This last is a provision for facilitating the investigation of facts 
in federal tribunals, and all the other cases "mentioned are cases in 
which the national authority is in some way involved. The 
Federal Supreme Court also has authority to issue the writ in the 
exercise of its appellate jurisdiction. 

The general authority to examine, by means of this writ, into 
unlawful restraints upon personal liberty, has not been conferred 
upon the United States, and therefore remains with the States. 
But if state tribunals issue the writ for a prisoner detained under 
federal authority, it must be dismissed when return is made show- 
ing the facts. A prisoner held under state process for extradition 
to another State may have a habeas corpus from a federal court or 
judge ; the process of extradition being provided for b}', and taken 
under, the Constitution of the United States. 

Conflict of Jurisdiction. — In strictness there can be no such 
thing as a conflict of laws between State and nation. The laws of 
both operate within the same territory, but if in an} r particular 
case their provisions are in conflict, one or the other is void. If a 
law of Congress is passed upon a subject which is within its con- 
stitutional powers, any state legislation opposed to it is a mere 
nullity. For this reason state statutes which in their operation 
would impede the execution of the Fugitive Slave Law were mere 
futile"attempts to make laws, and were to be held void by the state 
judiciary as well as by the federal. So are all state laws which 



JURISDICTION OF COURTS. 145 

tend to impede or obstruct the laws passed by Congress under its 
power to regulate commerce, all which undertake to levy taxes on 
the means selected by the general government for use in the exer- 
cise of its essential powers, and so on. On the other hand, a 
federal enactment taxing a State or its municipal corporations is 
inoperative, and so is one undertaking to establish regulations of 
local commerce within the States, and it cannot interfere with the 
operation of state laws on the same subject. In these cases the 
federal and state courts, if the question came before them, would 
recognize the same rule, and each administer the same law. If 
they chanced to differ in opinion, an appeal to the Federal 
Supreme Court must determine the controversy. 

But questions of much delicacy sometimes arise, when the 
federal and state courts, under their concurrent authority, may 
find their respective jurisdictions invoked in the same controversy. 
This might lead to collisions, and to unseemly and perhaps dan- 
gerous controversies, if the action of the courts were not directed 
by certain rules of good sense and commity devised to preserve 
harmony and insure an orderly administration of justice. 

The most important of these rules is that the court which first 
obtains jurisdiction of a controversy by the service of process, 
will not be interfered with by the other in the exercise of that juris- 
diction until final judgment and execution. The federal courts 
will not therefore enjoin the proceedings in a suit in a state court, 
nor a state court those in a federal court. 

Political Questions. — Over political questions the courts have no 
authority, but must accept the determination of the political de- 
partments of the government as conclusive. Such are the ques- 
tions of the existence of war, the restoration of peace, the de facto 
or rightful government of another country, the authority of foreign 
ambassadors and ministers, the admission of a State to the 
Union, the restoration to constitutional relations of a State lately 
in rebellion, the extent of the jurisdiction of a foreign power, the 
right of Indians to recognition as a tribe, and so on. 

Final Authority in Construction. — The several departments of 
the government are equal in dignity and of co-ordinate authority, 
and neither can subject the other to its jurisdiction, or strip it 
of any portion of its constitutional powers. But the judiciary is 
the final authority in the construction of the constitution and the 
laws, and its construction should be received and followed by the 



146 JURISDICTION OF COURTS. 

other departments. This results from the nature of its jurisdic- 
tion; questions of construction arise in legal controversies, and 
are determined by the courts, and when determined the courts 
have power to give effect to their conclusions. Their judgments 
thus become the law of the land on the points covered by them, 
and a disregard of them, whether by private citizens or by officers 
of the government, could only result in new controversy, to be 
finally determined by the judiciary in the same way. But the 
courts have no authority to pass upon abstract questions, or ques- 
tions not presented by actual litigation, and have therefore noth- 
ing to do with questions which relate exclusively to executive or 
legislative authority ; nor is there an}- method in which their opin- 
ions can be constitutionally expressed, so as to have binding force 
upon either the executive or the legislature when the question pre- 
sents itself, not as one of existing law, but as one of what it is 
proper or politic or competent to make law for the future. The 
judiciary, though the final judge of what the law is, is not the 
judge of what the law should be. 

It is very proper, however, that the judiciary, in passing upon 
questions of law which have been considered and acted upon by 
the other departments, should give great weight to their opinions, 
especially if they have passed unchallenged for a considera- 
ble period. The judiciary have often yielded to it when the cor- 
rectness of a practical construction of the law by the executive 
departments, in the performance of their own duties, was in 
question ; but they cannot do this when, in the opinion of the court, 
the construction is plainly in violation of the Constitution. 



CONTENTS: 



I. Articles of Confederation . ... . . 1 

II. Constitution of the United States . . .10 

Amendments to the Constitution . . .' 22 

III. Kin Beyond Sea 27 

IV. The Growth of the English Constitution . . 60 
V. Stages in the Development of the Cabinet . 69 

VI. The Treasury.— The Budget . . . . . 77 

VII. Changes of Ministry ...... 90 

VIII. The Conduct of Business in Congress . .108 

IX. The House of Representatives . . . . 123 

X. Rules of the House of Commons Relating to 

"Obstruction" and to Order of Business . 132 

XI. Jurisdiction of United States' Courts and 

of State Courts . . . . . .135 



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